There is no violation of the right to respect for private and family life, home and correspondence under Article 8 of the European Convention due to the cutting off of a telephone line.
• Decision No. AP 21/02 of 17 May 2004, paragraphs 38 and 39, published in the Official Gazette of Bosnia and Herzegovina, 40/04; proceedings on the appellant’s request for the compensation of damage due to the cutting off of a telephone line
The fact that not even almost ten years after the cessation of the war operations in Bosnia and Herzegovina the competent authorities had not managed to submit information to the appellants regarding the fate of the members of their families that had gone missing during the war conflict in Bosnia and Herzegovina, is sufficient to the Constitutional Court to conclude that the rights to private and family life were violated in respect of the members of families of missing persons.
• Decision on Admissibility and Merits No. AP 129/04 of 27 May 2005, published in the Official Gazette of Bosnia and Herzegovina, 58/05;
• Decision on Admissibility and Merits No. AP 143/04 of 23 September 2005, published in the Official Gazette of Bosnia and Herzegovina, 80/05;
• Decision on Admissibility and Merits No. AP 228/04 of 13 July 2005, published in the Official Gazette of Bosnia and Herzegovina, 58/05; missing persons
The press statements as to the appellant’s activity as a commander of a military unit during the war cannot be considered private, but rather “public function” the appellant had discharged during the war. In the event when the publication of an article does not interfere with the appellant’s private sphere, as is the case here, there is no violation of the right to “private life” guaranteed by Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention.
• Decision on Admissibility and Merits No. AP 427/06 of 5 June 2007, paragraph 38, published in the Official Gazette of Bosnia and Herzegovina, 6/08; defamation, connection between the protected rights to private life under Article 8 of the European Convention and values protected by Article 10 of the European Convention
There is no violation of the right to “private life” guaranteed by Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention in a procedure concerning paternity determination when such a procedure is conducted in accordance with the law, which is clear and public, when it is in the public interest and in accordance with the principle of proportionality between the public interest in a democratic society and the right of the appellant to private life.
• Decision onAdmissibility and Merits No.AP68/07 of 8 September 2009, paragraph 38, published in the Official Gazette of Bosnia and Herzegovina, 20/10; paternity determination, DNA test application to determine paternity, there is no violation of Article 8 of the European Convention and Article II(3)(f) of the Constitution of BiH
In the instant case, the facts were not substantiated - that due to the fight on the night between 3 and 4 November 2007, the police were late to file a criminal complaint, which helped the author to make a case for value judgment: that the appellant tried to use “his influence to save his son”.
Furthermore, in the present case, the appellant was a private person and not a public figure. Accordingly, he could have demanded particular protection of his right to privacy. The appellant’s name or initials were not mentioned in the disputed article. However, the article stated that the father of one of the participants in the fight (the appellant) (his full name is given), who is a former police officer, tried to use his influence and protect his son. Such allegations are not sufficient to make the appellant known to the public, but, as the lower-instance courts concluded, they were sufficient in order for the appelant to be identified in the small community in which he lives and in which all of them, more or less, know each other.
In this connection, the Constitutional Court notes that the appellant also points to numerous comments on the disputed article published on the portal, from which it follows that he was recognized in the community in which he lives, although neither his name nor his initials were mentioned. Furthermore, the undisputed fact that the appellant is a former police officer could not serve as a value judgment that the appellant had influence and attempted to use it in the police. All the more so, police officer Š.D. was interrogated as a witness before the trial court, and he confirmed, inter alia, that he had carried out the investigative actions in the specific case, and that the appellant did not interfere with his investigative actions, and that he, nevertheless, said “guys, do your job”. Finally, as it follows from the reasoning of the first instance verdict, the appellant stated, among other things, that in the community in which he enjoys reputation of an honest and professional person with a long career, the allegation that he had tried to use his influence to save his son who had been involved in the fight for which a criminal complaint was filed, clearly ruins the reputation of an honest and professional person. Bearing in mind the testimony of witness Š.D, it follows that the said allegation cannot be substantiated even by the fact that it was the appellant’s son. [… ] The Constitutional Court considers that, in the circumstances of the particular case, the value judgment was excessive and that a balance between the defendant’s freedom of expression and the appellant’s right to protection of reputation as a segment of private life was disturbed to the appellant’s detriment.
• Decision on Admissibility and Merits No. AP 668/13 of 12 May 2016, paragraphs 45 to 47; defamation, right to protection of reputation
The Constitutional Court notes that the Court of Appeal failed to address the issue of respect for professional standards by journalists, based on which it could be examined, among other things, whether the defendants had acted reasonably and in accordance with professional standards when publishing the disputed article. It could be also examined whether they tried to check the content of the article with the appellant prior to publication, and whether they gave an opportunity to the appellant to respond to the allegations made in the mentioned article. It could be also examined whether they acted in good faith, and, as already stated, that could be their defense against defamation even if false information was published. In doing so, the Constitutional Court notes in particular that, in order to determine the damage and possible liability of the defendants, the Basic Court considered the finding and opinion of a neuropsychiatrist expert, from which it undoubtedly follows that the appellant had suffered harmful consequences because of the publishing of the said article. However, the Court of Appeal did not consider those consequences at all. In view of the above, the Constitutional Court considers that, in adopting the challenged decision, the Court of Appeal did not carry out a proper analysis of the contested statement. The Court of Appeal failed to comply with by the standards of the European Court established by that Court’s case-law regarding striking a fair balance between the appellant’s right under Article 8 of the European Convention and the rights of the defendants under Article 10 of the European Convention. Therefore, the Constitutional Court considers that the challenged decision of the Court of Appeal, as the final decision in the present proceedings, did not strike a fair balance between the appellant’s right to reputation and the defendants’ right to freedom of expression, thereby violating the appellant’s right under Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention.
• Decision on Admissibility and Merits No. AP 5008/13 of 10 October 2016, paragraphs 36 to 37, published in the Official Gazette of Bosnia and Herzegovina, 85/16; right to protection of reputation
The right to privacy of the appellant referred to in Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention has not been violated in the case where the expert was informed of the contents of the phone without prior opening and examining the phone by the Prosecutor while the expert evaluation was ordered by a court. The above right has not been violated as everything was with the aim was to conduct criminal proceedings against the appellant, i.e. with the aim of establishing the facts and circumstances related to the criminal offenses the appellant has been charged with.
• Decision on Admissibility and Merits No. AP 2938/14 of 19 April 2017, paragraph 61, published in the Official Gazette of Bosnia and Herzegovina, 35/17; criminal proceedings; phone content analysis
The challenged decisions of 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 in the case where ordinary courts accepted the “imported evidence” obtained and accepted on the basis of the European Convention on Mutual Assistance in Criminal Matters, which was ratified by the State of Bosnia and Herzegovina, thereby becoming part of the legal system of the State of Bosnia and Herzegovina (evidence presented by official bodies of Serbia upon the orders of the investigating judge of the Court in Serbia), where the courts kept in mind that in the instant case the appellant’s fundamental human rights were not violated and that there were no abuses in obtaining such evidence.
• Decision on Admissibility and Merits No. AP 4935/16 of 19 December 2018, paragraphs 80 to 83; criminal proceedings; imported evidence
