The freedom of expression is not absolute and it is subject to limitations. Almost not a single human right and freedom, irrespective of their priority or importance, is and can be absolute and unlimited in a democratic society. Since the absolute freedom and absolute right are contradictio in adjecto, the manner in which a legal principle is interpreted and applied remains decisive and disputable at the same time. Therefore, the key role and duty of the independent judiciary is to determine the limit between justified and necessary and unjustified and unnecessary restrictions, which confirm a principle as a rule or deny it as a mere statement.
• Decision on Admissibility and Merits No. AP 1005/04 of 2 December 2005, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 45/06
Article 10 of the European Convention does not allow the allegations as to the facts and comments to go unpunished even if the journalists do it at the expense of politicians and public personalities, unless there is evidence that may reasonably support such an allegation, or if a journalist or editor published it in good faith and took reasonable steps to check reliability of evidence as much as possible.
• Decision on the Merits No. AP 1064/05 of 14 March 2006, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 94/05
The courts’ failure to make a correct distinction between the value judgments and facts could in principle have a bearing on the determination of the damage amount, since the seriousness of the consequences on the reputation of a person would depend on the “scope” of the expressed defamation. Since the ordinary courts, according to the principle of proportionality, failed to strike a fair balance between the freedom of media and the second-defendant’s rights to reputation, they exceeded their margin of appreciation by doing so.
• Decision on Admissibility and Merits No. AP 1203/05 of 14 March 2006, paragraph 53, published in the Official Gazette of Bosnia and Herzegovina, 7/07; civil proceedings, there is no fair balance in respect of damage compensation for defamation; the violation of Article 10 of the European Convention and Article II(3)
(h) of the Constitution of BiH established
Damage compensation awarded in a civil litigation as a compensation for damage caused to one’s dignity or reputation constitutes clear interference with the exercise of the right to freedom of expression.
• Decision on the Merits No. AP 1064/05 of 14 March 2006, paragraph 32, published in the Official Gazette of Bosnia and Herzegovina, 94/05;
• Decision on Admissibility and Merits No. AP 1289/05 of 9 November 2006, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 11/07
The appellant’s right to freedom of expression has been violated in the present case, since the ordinary courts did not sufficiently carry out objective analysis of the content of the appellant’s text. Also, imposing a fine on the appellant without giving him an opportunity to be heard meant the deprivation of the appellant not only of an opportunity to present the facts and evidence in his favor, but also a disproportionate interference with the protected freedom of expression guaranteed to the appellant by the Constitution of Bosnia and Herzegovina and European Convention for the Protection of Human Rights and Fundamental Freedoms.
• Decision on Admissibility and Merits No. AP 198/03 of 20 October 2006, paragraph 45, published in the Official Gazette of Bosnia and Herzegovina, 11/07; fine imposed for the contempt of court
The general interest allowing the issue on possible unlawful conduct by the public officers to be raised cannot be defended by presenting undisputedly untrue facts, which constitute an attack on their reputation and which, therefore, cannot be regarded as criticism, which they must tolerate given the office that they exercise.
• Decision on Admissibility and Merits No. AP 1881/05 of 20 October 2006, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 9/07;
• Decision on Admissibility and Merits No. AP 1423/05 of 8 July 2006, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 7/07; civil proceedings; the presentation of undisputedly untrue facts; there is no violation of Article 10 of the European Convention and Article II(3)(h) of the Constitution of Bosnia and Herzegovina
There is no proportionality between the aim and means, in the instant case the protection of the right to “truth” of the plaintiff and the means of interference, in the instant case the court’s order according to which the appellants are to pay compensation for damage caused to the plaintiff’s reputation, in a case in which the ordinary courts did not exceed the margin of appreciation in assessing whether the appellants stated untrue facts, but they did not establish the relevant facts for adopting a decision on the award of non- pecuniary damage compensation, circumstances of the case and intensity of mental sufferings and their duration as a legal basis, but they arbitrarily concluded that there is a damage and the appellants’ responsibility for the damage.
• Decision on Admissibility and Merits No. AP 1289/05 of 9 November 2006, paragraphs 41 and 42, published in the Official Gazette of Bosnia and Herzegovina, 11/07; civil proceedings, there is no fair balance in respect of the damage compensation for defamation; the violation of Article 10 of the European Convention and Article II(3)(h) of the Constitution of Bosnia and Herzegovina established
There is a violation of 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 when the decision taken in the civil proceedings ordered the appellant to pay compensation for non-pecuniary damage caused to the plaintiff’s reputation by presenting and disseminating untrue facts, where the imposition of such measure does not strike a “proportionality” between the right to freedom of expression and the right to reputation, nor the reasons given in the judgment can be regarded as relevant and sufficient within the meaning of Article 10 of the European Convention, which is the reason why it can be established that the “interference” was a “necessary measure in a democratic society”.
• Decision on Admissibility and Merits No. AP 1067/06 of 13 September 2007, paragraphs 33 to 38, published in the Official Gazette of Bosnia and Herzegovina, 6/08; there is no proportionality between the right to freedom of expression and the right to reputation in determining the damage compensation for defamation; the violation of Article 10 of the European Convention and Article II(3)(h) of the Constitution of Bosnia and Herzegovina established
By imposing a fine the ordinary courts violated the appellant’s right to freedom of expression, since they qualified the appellant’s expression of doubt about the court’s impartiality as a contempt of court and a violation of its authority.
• Decision on Admissibility No. AP 840/06 of 25 January 2008, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 23/08; the lack of impartiality and objectivity of the courts while qualifying and assessing the appellant’s letter; the violation of Article 10 of the European Convention and Article II(3)(h) of the Constitution of Bosnia and Herzegovina established;
• Decision on Admissibility and Merits No. AP 1095/06 of 14 October 2008, paragraph 24 published in the Official Gazette of Bosnia and Herzegovina, 99/08
The Constitutional Court concludes that there was no violation in the present case under Article II(3)(h) of the Constitution of Bosnia and Herzegovina and Article 10 of the European Convention when the appellant, due to inappropriate behavior at a hearing was fined, which was proportionate to the justified aim sought to be achieved with a view to preserving the dignity and authority of the court.
• Decision on Admissibility and Merits No. AP 2486/11 of 17 July 2014, paragraph 37, published in the Official Gazette of Bosnia and Herzegovina, 71/14; contempt of the court, the refusal of the judge to put on a robe at a hearing; there is no violation of Article 10 of the European Convention and Article II(3)(h) of the Constitution of BiH
With regard to the manner of determining the amount of damages as a sanction constituting interference with freedom of expression, the Constitutional Court points to its own standpoint that the determination of financial compensation for non-pecuniary damage is a very delicate and complex procedure, given the very different moral and psychological condition of each individual and all other circumstances under which the damage was caused resulting in violation of the injured party’s right to intangible property. Contrary to the appellant’s claim that damages must be proved within the meaning of the relevant provisions of the Law on Obligations in each individual case, there is no “list of evidence” based on which the domestic courts would consider which sanction would constitute interference proportionate to the aim sought to be achieved, nor could it be expected the evidence to be presented in order to accurately determine the “intensity and duration” of the non-pecuniary damage suffered. Thus, courts are not limited by specific formal means of evidence, in particular not by presenting evidence through expert examination in order to determine “the severity and duration of mental pains”. Thus, in determining the sanction, the ordinary courts take into account a number of factors relevant to the particular case and, based on a free evaluation, determine the relevant circumstances of each particular case, including the acceptable analysis of the relevant principles. In the context of the above and in this particular case, the Constitutional Court is of the opinion that there was such an analysis. Namely, in the determination of the financial compensation, i.e. a sanction constituting an interference with the right to freedom of expression, to the amount of BAM 3,000.00, the ordinary courts did not act automatically, nor arbitrarily and the appellants pointed to that fact. However, they acted in accordance with the case-law and discretionary powers, limited only by the requirement of proportionality referred to in Article 10 of the European Convention, where an acceptable analysis of all relevant principles was applied. Therefore, the prosecutor failed to take a lawful action – file a claim for denial in order to reduce the damage. The Constitutional Court considers that the measure taken to protect the reputation and honour of the prosecutor, i.e. award of compensation to the amount of BAM 3,000.00 is proportional to the gravity of the violation of his reputation, as well as to the gravity of interference of the courts with the freedom of expression caused by this measure. The Court also considers that the challenged decisions were adopted in accordance with Article 10 of the European Convention.
• Decision on Admissibility and Merits No. AP 3222/12 of 12 January 2016, paragraph 47, published in the Official Gazette of Bosnia and Herzegovina, 12/16;
• Decision on Admissibility and Merits No. AP 1428/13 of 20 April 2016, paragraph 44; compensation for non-pecuniary damage, protection of reputation and honor; there is no violation of Article 10 of the European Convention and II(3)(h) of the Constitution of BiH
As regards the allegations concerning the second defendant, who has downloaded all the disputed articles from other portals and published them on the portal Poskok.ba, the Constitutional Court considers it necessary to emphasize that the media have a task to transmit information and ideas of public interest, and the public has the right to receive this information. If it were not so, the media would not be able to fulfill its vital role as a “public interest watchdog”. In this connection, the Court points out that penalizing journalists for conveying statements by others would seriously jeopardize the contribution of the media to the public interest of debate and would not be justified unless there are particularly important reasons for this (see, ECJ, Jersild v. Denmark, Judgment of 23 September 1984, Application No. 15890/89, § 35). This view was also substantiated in the subsequent case-law. It was noted that the Court has already held that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas (see, the European Court, Milisavljević v. Serbia, judgment of 4 April 2017, Application no. 50123/06, paragraph 37, with further references). In view of the above, the Constitutional Court notes that in the present case, it is undisputed that the second defendant was not the author of the articles at issue, but that he merely conveyed what others had stated about the appellant’s husband, and that there was nothing to indicate that he had acted maliciously. Since the Constitutional Court has already concluded that the courts have correctly struck a balance between the right of the first defendant as the author of the disputed article to freedom of expression and the appellant’s right to reputation, the same conclusion has to be made with respect to the second defendant who transmitted this article and two other disputed articles of similar content.
• Decision on Admissibility and Merits No. AP 5204/15 of 13 March 2018, paragraph 43, published in the Official Gazette of Bosnia and Herzegovina, 21/18; a fair balance was struck between the appellant’s right to privacy under Article 8 of the European Convention and the defendants’ right to freedom of expression under Article 10 of the European Convention
As regards the issue as to whether and to what extent the right to access to information under the control of public authority falls within the right of “freedom of expression” under Article 10 of the European Convention in this particular case, the Constitutional Court first points out that in several cases related to the right of access to information it took the view that “the procedure for establishing the existence of legal prerequisites for access to information does not raise issues and does not enjoy the protection of 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”, and it found such appeals ratione materiae inadmissible (see, the Constitutional Court, Decisions on Admissibility No. AP 1062/14 of 24 April 2014, paragraph 11 and AP-2527/17 of 18 July 2017, para. 12; both available at www.ustavnisud.ba). However, bearing in mind the case-law of the European Court (see paragraph, 22-25 of this decision), as well as the appellant in this case being also a non-governmental organization that could play the role of “social supervisor of government”, which will be further considered in the decision, the Constitutional Court is of the opinion that the right to freedom of access to information, in the circumstances of a particular case, falls within the scope of Article 10 of the European Convention.[...] The Constitutional Court concludes that there is no violation of the right of access to information as part of the right to freedom of expression under Article II(3)(h) of the Constitution of Bosnia and Herzegovina and Article 10 of the European Convention in the case where the appellant is denied access to a part of the requested information, because the competent authority exempted that information from publication in accordance with Article 6(v) of the Law on Freedom of Access to Information, and such denial, given the relevant criteria, does not constitute an interference with the appellant’s right under Article 10 of the European Convention.
• Decision on Admissibility and Merits No. AP 461/16 of 6 June 2018, paragraphs 28 and 39, published in the Official Gazette of Bosnia and Herzegovina, 45/18; access to information; there is no violation of Article II(3)(h) of the BiH Constitution and Article 10 of the European Convention
The Constitutional Court finds that the appellant’s right under Article II(3)(h) of the Constitution of Bosnia and Herzegovina and Article 10 of the European Convention has been violated in the situation where the ordinary courts found that the appellant is guilty of the criminal offense of “inciting national, racial and religious hatred, discord or hostility” under Article 163 (2) in conjunction with paragraph 1 of the FBiH CC because a fair balance between the protection of the appellant’s right to freedom of expression and the right to protection of the religious rights of others was not struck because in the challenged decisions the relevant and sufficient reasons were not provided to justify interfering with this appellant’s right.
• Decision on Admissibility and Merits No. AP 3430/16 of 19 December 2018, paragraph 41, published in the Official Gazette of Bosnia and Herzegovina, 4/19; the appellant was found guilty because he had published the disputed article on his own Facebook profile; there is a violation of Article II(3)(h) of the Constitution of BiH and Article 10 of the European Convention.
