The Constitutional Court of Bosnia and Herzegovina held its 81st ordinary session of the Grand Chamber today.
Of decisions it adopted today the Constitutional Court has singled out the following:
AP 3430/16 - the Constitutional Court concluded that the challenged decisions of the ordinary courts violated the appellant’s right to freedom of expression under Article II (3) (h) of the Constitution of Bosnia and Herzegovina and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the ordinary courts failed to provide the relevant and sufficient reasons for their respective decisions justifying the interference with the appellant’s right to freedom of expression. The challenged decisions of the ordinary courts found the appellant guilty of the criminal offence of “Inciting National, Racial or Religious Hatred, Discord or Hostility” referred to in Article 163, paragraph 2 in conjunction with paragraph 1 of the Criminal Code of the Federation of BiH for having published on the appellant’s Facebook profile photographs of the Jesus Christ Statue located in Rio de Janeiro with the text “Let’s go, rip them”, with the flag of Bosnia and Herzegovina set in the background and two dragons flying towards the statue, with “the first dragon, with his mouth open, attacking the mentioned statue”. The disputed photograph was published on the day of the World Cup qualifying match of the BiH football team played in Brazil. The ordinary courts took a position essentially in the challenged judgments that by publishing the disputed photograph the appellant “publicly provoked religious hatred and intolerance against Croats, members of the Roman Catholic religion”, whereby, in the opinion of the Constitutional Court, they failed to provide sufficient and relevant reasons as to why the appellant’s defence could not have been accepted in that he published the disputed photograph “only as a token of sports support to the team of Bosnia and Herzegovina”. In view of the aforementioned, the Constitutional Court concluded that the appellant’s right to a well-reasoned decision was violated as part of the right to a fair trial under 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.
AP 4935/16 - the Constitutional Court, inter alia, concluded that the challenged decisions of the ordinary court did not violate the appellant’s right to private life under 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, whereby the ordinary courts accepted in the present case “the imported evidence” obtained and accepted pursuant to the European Convention on Mutual Assistance in Criminal Matters, ratified by the State of Bosnia and Herzegovina, thus becoming a part of the legal system of the State of Bosnia and Herzegovina (evidence presented by official authorities of Serbia, pursuant to the orders issued by the investigative judge of a court in Serbia), thereby bearing in mind that no violations of the appellant’s fundamental rights occurred in the present case and there were no other abuses surrounding the obtaining of such evidence.
AP 4319/16 - the Constitutional Court concluded that there is a violation of the appellants’ right under Article II (3) (b) of the Constitution of Bosnia and Herzegovina and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in conjunction with Article II (4) of the Constitution of Bosnia and Herzegovina and Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the competent police authorities failed to fulfil their positive obligation of protecting the appellants as participants of the Festival (which goal was to promote the rights and culture of LGBT persons through film art as one of the methods of fight aimed at reducing homophobia), as well as because the public authorities failed to fulfil their procedural obligation of investigating omissions in the organization of the security of the Festival and the perpetrators of the attack on the appellants. Also, in the present case the Constitutional Court concluded that there is a violation of the right to freedom of assembly under Article II (3) (i) of the Constitution of Bosnia and Herzegovina and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in conjunction with Article II (4) of the Constitution of Bosnia and Herzegovina and Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms where the public authorities, in accordance with their positive obligations, failed to undertake necessary measures to secure a peaceful assembly organised in accordance with the law, which is the reason why violence erupted against the participants of the Festival motivated by homophobic bias, and where they failed to secure a clear legal framework to act preventively in preventing and suppressing the perpetration of the same or similar offences. In view of the established violation of the mentioned rights of the appellants, the Constitutional Court awarded to the appellants an adequate compensation in respect of the compensation for non-pecuniary damage.
All decisions taken at the session today will be delivered to the appellants within one month time limit and will be published as soon as possible on the official website of the Constitutional Court of Bosnia and Herzegovina.
