CASE OF MEDŽLIS ISLAMSKE ZAJEDNICE BRČKO AND OTHERS v. BOSNIA AND HERZEGOVINA
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä
5. In May 2003 the applicants wrote a letter to the International Supervisor for BD, to the President of the Assembly of BD and to the Governor of BD concerning the appointment of a director of the BD public radio station. They referred, in particular, to M.Sʼs candidacy for that position. M.S. was the entertainment editor at the BD public radio at the material time. The relevant part of the letter reads as follows: “We acknowledge and appreciate your support and the effort you put in creating a multiethnic radio...Unfortunately, it appears that there was a major oversight at the very beginning of this important venture. The panel for the selection of the director [of the radio] was created in contravention of the Statute of Brčko District. It is composed of three Serb members, one Croat and one Bosniac. Thus, yet again, the Statute, which requires proportional representation of the three constituent peoples in public institutions, was disregarded...Unfortunately, nothing has been done to correct this. The unofficial information we received to the effect that Ms M.S. was proposed for the position of the radio director by the Serb members of the Panel... although the former director was Bosniac, confirms the above. This proposal is unacceptable, all the more so because it concerns a person who lacks the professional and moral qualities for such a position. According to the information we received... in an interview published in “NIN”, discussing the destruction of mosques in Brčko, Ms M.S. said that Muslims were not people, that they did not possess culture and that, accordingly, destroying mosques could not be seen as a destruction of cultural monuments, ... on the radio’s premises ... she made a point of removing from the wall (and tore to pieces) the calendar with the schedule of religious services during the month of Ramadan, ...on the radio’s premises she covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska, as the editor of the entertainment programme she banned broadcasting of sevdalinka arguing that that type of song had no cultural or musical value. We firmly believe that the above-described acts absolutely disqualify Ms M.S. as a candidate for the position of the director of the multiethnic Radio and Television of Brčko District... We hope that you will act accordingly... In the absence of any action on your part, we will be forced to contact the media as well as the other competent national and international bodies.” 6. Shortly thereafter the letter was published in three different daily newspapers. 7. On 29 May 2003 M.S. initiated civil defamation proceedings against the applicants and claimed compensation of 50,000 convertible marks (BAM). M.S submitted that she had learned about the content of the letter shorlty after it had been sent by the defendants, but that she did not know who gave it to the media. After the letter was published, the Governor of BD annulled the proceedings for the appointment of a director of the public radio station. 8. On 29 September 2004 the BD Court of First Instance (“the Court of First Instance”) rejected the claim. It held that the applicants could not be liable for the alleged defamation because they had not published the letter in the media. The relevant part of the judgment reads as follows: “From the defendants’ letter, it is clear that it was privately sent to the Governor, to the President of the Assembly and to the Supervisor for Brčko District...and it was not sent to the media... [T]he aim of the letter was not dissemination of unverified information to public, but bringing the attention of the competent authorities to certain issues and to enable them to draw certain conclusions on verification of that information. Having examined the articles published in the media, the court concludes that none of them was published by the defendants in this case.” 9. M.S. appealed against that judgment to the BD Appellate Court ("the Appellate Court"). On 16 May 2005 the Appellate Court quashed the judgment of 29 September 2004 and decided to hold a new hearing. 10. On 11 July 2007 after having examined several witnesses (including the two employees of the BD public radio from whom the applicants received the information presented in their letter), the Appellate Court found that the contested letter contained some value-judgments but also the statements of facts which had been untrue and damaging to M.S.ʼs reputation. It held that for the liability for defamation to be established under section 6(1) of the Defamation Act 2003 it was irrelevant that the applicants did not publish the letter. The Appellate Court ordered the applicants to inform the International Supervisor for BD, the President of the Assembly of BD and the BD’s Governor about the retraction of their statements within 15 days, in default of which they had to pay BAM 2,500 in damage to M.S., together with default interest at the statutory rate from 11 July 2007. They were further ordered to publish the judgment at their own expense. 11. On 15 November 2007 M.S. filed a request for the enforcement of the above judgment to the Court of First Instance. She proposed, inter alia, that the court send the judgment of 11 July 2007 for publication at the applicants’ expense. 12. On 5 December 2007 the Court of First Instance issued a writ of execution. 13. On 12 December 2007 the applicants paid BAM 2,825 (approximately 1,445 euros (EUR)) by way of the enforcement of the judgment of 11 July 2007. 14. On 27 March 2009 the Court of First Instance closed the enforcement proceedings. 15. In the meantime, on 15 October 2007 the applicants complained about the violation of their right to freedom of expression to the Constitutional Court of Bosnia and Herzegovina ("the Constitutional Court"). 16. On 13 May 2010 the Constitutional Court held that the interference with the applicants’ right to freedom of expression was “necessary in a democratic society” and concluded that there had been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina and Article 10 of the Convention. The relevant part of the decision reads as follows: “34. At the outset the Constitutional Court notes that the appellants did not deny that their liability for defamation was based on the Defamation Act 2003 and that, therefore, the interference with the right [to freedom of expression] protected by Article 10 of the European Convention was prescribed by law... 35. The impugned judgment was delievered in a civil defamation proceedings initiated by the plaintiff against the appellants...accordingly, the interference pursued the legitimate aim of the protection of the “reputation or rights of others”. 36. What remains to be determined is whether the interference complained of was “necessary in a democratic society”.... ... 38. The Constitutional Court considers that the Appellate Court established without doubt that the impugned factual statements about M.S. were false and that the appellants were liable for defamation. From the submissions of the two witnesses, from whom the appellants received the information presented in the letter [concerning the part of the letter in which it was stated that M.S. ‘made a point of removing from the wall (and tore to pieces) the calendar with the schedule of religious services during the month of Ramadan and as the editor of the entertainment programme she banned broadcasting of sevdalinka arguing that that type of song had no cultural or musical value’], the Appellate Court established that there was an evident inconsistency between that what had been said to the appellants and that what they had reported in the letter. Furthermore, the statement from the impugned letter that M.S. gave an interview concerning the destruction of mosques was refuted by another witness who submitted that a subsequent verification had revealed that M.S. had not been the author of the said interview. Finally, the appellants failed to prove the veracity of the allegations that M.S. covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska. In view of the above, the Constitutional Court considers that in the present case the right of the appellants to report irregularities in the conduct of an official to a body competent to deal with such complaints cannot be premised on ascertaining manifestly untrue facts which go beyond the limit of acceptable criticism of civil servants. Accordingly, the court considers that the Appellate Court correctly concluded that there was ‘a pressing social need’ in the present case [for the interference with the appellants’ right to freedom of expression]. 39. Furthermore, the Constitutional Court notes that the Appellate Court awarded non-pecuniary damage to M.S. because her reputation was affected by the untrue statements made in the impugned letter. ...The Constitutional Court has already stated in its previous jurisprudence that a person’s reputation forms part of her personal identity and psychological integrity... ... 43. The appellants...failed to verify the impugned statements beforehand as was their duty. The Appeal Court established that the appellants had damaged M.S.’s reputation by making untrue allegations, which caused her mental anguish...When deciding on the claim in respect of non-pecuniary damage and its amount, the Appellate Court took into account the purpose of those damages, as well as that it should not favour aspirations that are incompatible with its nature and social purpose. 44. [T]he Constitutional Court considers that a measure imposed on the appellants in the present case was proportionate to the aim pursued...The court further considers that the Appellate Court did not go beyond its discretionary power in deciding on the claim in respect of non-pecuniary damage...[T]he Constitutional Court finds that the reasons the Appellate Court gave were ‘relevant’ and ‘sufficient’ within the meaning of Article 10 of the European Convention. 45. In view of the above, the Constitutional Court considers that the interference with the appellants’ right to freedom of expression was ‘necessary in a democratic society’ and that, therefore, there has been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina and Article 10 of the European Convention.” 17. On 21 September 2010 the Constitutional Court’s decision was served on the applicants.