The Constitutional Court of Bosnia and Herzegovina has held today its regular and last session in 2015, 29^th Session of the Grand Chamber.

At today’s session of the Grand Chamber, the Constitutional Court of BiH considered, inter alia, a large number of appeals lodged over the purported violations of constitutional rights of the appellants inflicted by the ordinary courts, which involved a number of appeals raising the issue of responsibility for slander.

For illustration we single out the following:

Mr. Dragan Kalinić from Banja Luka lodged an appeal with the Constitutional Court of Bosnia and Herzegovina against a judgment of the County Court in Banja Luka and a judgment of the Basic Court in Banja Luka.

Namely, the judgment of the Basic Court dismissed the appellant’s claim requesting that it be established that the first-defendant and the second-defendant as authors of articles published in the Weekly “Patriot” of 22 December and 29 December 2003 respectively, titled “Father Away on a Business Trip or All of Kalinić’s Apartments and Road Bandits” and “All of Kalinić’s Apartments”, deliberately presenting lies, inflicted damage on the appellant and thereby abused the right to freedom of expression guaranteed under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In view of the aforementioned, they were obligated to jointly compensate the damage to the appellant caused by slander, that is to say to reimburse him the amount of BAM 10,000.00 as satisfaction for mental pain, along with the compensation for the costs of the proceedings, and were to bear a burden of having the judgment published at their cost in a weekly and two daily papers.

While deciding the appellant’s appeal against the mentioned judgment, the County Court issued a judgment dismissing the appeal and upholding the first-instance judgment. In reasoning the judgment, inter alia, the County Court alleged that the first-instance court had established in the respective proceedings that the defendants’ allegations, which had been published in the Weekly “Patriot” had been untrue, but that no damage for the appellant resulted from such allegations, that is to say that it was not established that the appellant suffered mental pain, which was a prerequisite for awarding monetary compensation. In the opinion of the County Court, the information published about the appellant, i.e. his financial standing, did not constitute slander and were not of such nature as to cause mental pain that would justify awarding the compensation for such a form of damage.

The appellant challenged the mentioned judgments asserting that they violated his rights under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The appellant, inter alia, indicated that the first-instance court had arbitrarily assessed evidence in the respective proceedings, namely that the first-instance court alleged in the reasons for its judgment the evidence it had presented at the main hearing, but that it failed to state that it had assessed each piece of evidence separately and all the evidence together.

However, the Constitutional Court took into account that the challenged decisions dismissed the appellant’s claim requesting that it be established that the defendants were responsible for slander, i.e. that by putting forward untrue information about the appellant they caused damage to his reputation, accordingly they were obligated to compensate non-pecuniary damage for mental pain suffered as a result of the damage to his reputation. Since the essence of the appellant’s request is related to the protection of “the right to reputation”, which is safeguarded under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, by observing the case-law of the European Curt of Human Rights, the Constitutional Court examined in the present case whether the ordinary courts provided sufficient and relevant reasons for denying the protection of the appellant’s reputation, namely whether the challenged decisions of the ordinary courts stroke a fair balance between the two opposing rights: the appellant’s right to reputation and the right of the defendants to the freedom of expression.

Therefore, the Constitutional Court concluded that there had been a violation of Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the ordinary courts, in adopting the challenged decisions, failed to conduct an appropriate analysis as required by the standards of the European Court of Human Rights established by the case-law of that court regarding the striking of a fair balance between the rights referred to in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Constitutional Court granted the appeal lodged by Mr. Dragan Kalinić and established a violation of Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Constitutional Court quashed the Judgment of the County Court in Banja Luka no. 71 0 P 037776 11 Gž of 4 April 2012 and remitted the case to the said court, which has the obligation to adopt a new decision in an urgent procedure, in accordance with Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Inter alia, the Constitutional Court also decided a number of requests about violations of the appellants’ rights to a fair trial. In cases where the court established violations of the appellants’ rights to a fair trial, over the failure of courts to issue decisions within a reasonable time (Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms), the competent courts were ordered to finalize proceedings as a matter of urgency and to inform the Court thereof within three months.

The Court rejected the appeals that were manifestly unfounded and inadmissible. This pertains to the cases where the Court established that the appellants’ requests were not justified, namely that the facts they presented to the Court could in no way justify the assertions of the appellants as to the existence of violations of their respective rights safeguarded under the Constitution, or that the parties to the proceedings did not suffer the consequences of the purported violations of the rights safeguarded under the Constitution.