“The courts should comply with the legal standards of the right to liberty and security of person and right to freedom of expression in order to ensure equality of citizens before the law,” was stated during the presentation of the Report on the Case Law of Bosnia and Herzegovina Courts on the Right to Liberty and Security of Person and Freedom of Expression.
The Constitutional Court of Bosnia and Herzegovina (BiH) and AIRE Centre presented the Report to the judges of the Basic and Appellate Courts of the Brčko District of BiH and judges of the Cantonal Court of Sarajevo on 12 and 13 July 2021. The judges found the publication to be a very useful “tool” for their work.
In a simple and practical way, the Report presents the relevant decisions of the courts and principles of interpretation of norms in important domains of the European Convention on Human Rights. Those are the protection of the right under Article 5 (the right to liberty and security of person) and protection of the right under Article 10 (the right to freedom of expression).
“The courts’ case law regarding the protection of the right to freedom of expression under Constitution and European Convention is not harmonized. The aim of this Guide, dealing with, inter alia, the right to freedom of expression is to establish the standards referred to in the case law of the European Court of Human Rights and case law of the Constitutional Court of BiH,” said President of the Constitutional Court of BiH Mato Tadić during the presentation of the Report in Brčko District.
Mr. Damjan Kaurinović, the President of the Appellate Court of the Brčko District highlighted that the harmonized case law, based on law, ensured the adoption of the same decisions in the same or similar cases.
“Thus, the message conveyed to the judges of the ordinary courts in BiH by the Constitutional Court of BiH and AIRE Centre is that it is necessary to build a consistent case law. Only the consistent case law ensures equality of citizens before the law and legal certainty being a part of the concept of the right to a fair trial under Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH as one of the basic principles of the rule of law,” added President Kaurinović.
During the presentation of the Report to the judges of the Cantonal Court of Sarajevo, Vice-President of the Constitutional Court of BiH Mirsad Ćeman and Registrar of the Constitutional Court of BiH Zvonko Mijan referred to the relevant provisions of the European Convention and Constitution of BiH, and case law and standards developed by the European Court of Human Rights, Constitutional Court of BiH and ordinary courts of Bosnia and Herzegovina.
Referring to the right to freedom of expression under Article 10 of the European Convention, Vice-President Ćeman highlighted that the definition of that right under Article 10 was broad. Also, the right defined in paragraph 1 was encompassed by the so-called classified rights, meaning that the norm defined the right, and the second paragraph under Article 10 allowed interference and limitations under conditions prescribed by that paragraph.
The Vice-President also highlighted that interference and limitations prescribed by the law were necessary in a democratic society in the interests of national security, territorial integrity, public order, prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others, prevention of the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. He highlighted that the mentioned situations should be interpreted restrictively according to the case law of the European Court and Constitutional Court of BiH.
During the presentation of the Report, the judges of the Cantonal Court of Sarajevo expressed some of the issues they encounter when it comes to the application of Articles 5 and 10.
Registrar of the Constitutional Court of BiH Zvonko Mijan said that the judges of the Cantonal Court had found the publication to be a very useful „tool“ for their work. In addition, it had already incited discussions of several important issues regarding the application of the standards of human rights and freedoms in the cases under the scope of jurisdiction of that court.
“I am quite sure that what we have heard during the presentation will be of great use in our future work,” said Mr. Igor Todorović, the Vice-President of the Cantonal Court of Sarajevo.
The Report will also be presented to the judges of the courts in Banja Luka, Tuzla and Mostar.
