MEDZLIS ISLAMSKE ZAJEDNICE BRCKO AND OTHERS v. BOSNIA AND HERZEGOVINA - 17224/11 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2015] ECHR 873 (13 October 2015)

In the case of Medžlis Islamske Zajednice Brčko and others v. Bosnia and Herzegovina,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Guido Raimondi, President,
          Päivi Hirvelä,
          George Nicolaou,
          Ledi Bianku,
          Nona Tsotsoria,
          Krzysztof Wojtyczek,
          Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 8 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 17224/11) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four non-governmental organisations from Brčko District of Bosnia and Herzegovina (“BD”): the Brčko Branch of the Islamic Community of Bosnia and Herzegovina (Medžlis Islamske zajednice Brčko), the Bosniac Cultural Society “Preporod” (Bošnjačka zajednica kulture “Preporod”), the Bosniac Charity Association “Merhamet” (“Merhamet” Humanitarno udruženje građana Bošnjaka Brčko Distrikta) and the Council of Bosniac Intellectuals (Vijeće Kongresa Bošnjačkih intelektualaca Brčko Distrikta), on 21 January 2011.

2. The applicants were represented by Mr O. Mulahalilović, a lawyer practising in Brčko. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.

3. The applicants alleged, in particular, that their right to freedom of expression had been violated as a result of judicial decisions in defamation proceedings which had been brought against them.

4. On 6 February 2014 the complaint concerning the interference with the applicants’ right to freedom of expression was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. In May 2003 the applicants wrote a letter to the International Supervisor for BD, to the President of the Assembly of BD and to the Governor of BD concerning the appointment of a director of the BD public radio station. They referred, in particular, to M.Sʼs candidacy for that position. M.S. was the entertainment editor at the BD public radio at the material time.

The relevant part of the letter reads as follows:

“We acknowledge and appreciate your support and the effort you put in creating a multiethnic radio...Unfortunately, it appears that there was a major oversight at the very beginning of this important venture. The panel for the selection of the director [of the radio] was created in contravention of the Statute of Brčko District. It is composed of three Serb members, one Croat and one Bosniac. Thus, yet again, the Statute, which requires proportional representation of the three constituent peoples in public institutions, was disregarded...Unfortunately, nothing has been done to correct this. The unofficial information we received to the effect that Ms M.S. was proposed for the position of the radio director by the Serb members of the Panel... although the former director was Bosniac, confirms the above. This proposal is unacceptable, all the more so because it concerns a person who lacks the professional and moral qualities for such a position.

According to the information we received...

in an interview published in “NIN”, discussing the destruction of mosques in Brčko, Ms M.S. said that Muslims were not people, that they did not possess culture and that, accordingly, destroying mosques could not be seen as a destruction of cultural monuments,

... on the radio’s premises ... she made a point of removing from the wall (and tore to pieces) the calendar with the schedule of religious services during the month of Ramadan,

...on the radio’s premises she covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska,

as the editor of the entertainment programme she banned broadcasting of sevdalinka arguing that that type of song had no cultural or musical value.

We firmly believe that the above-described acts absolutely disqualify Ms M.S. as a candidate for the position of the director of the multiethnic Radio and Television of Brčko District...

We hope that you will act accordingly...

In the absence of any action on your part, we will be forced to contact the media as well as the other competent national and international bodies.”

6. Shortly thereafter the letter was published in three different daily newspapers.

7. On 29 May 2003 M.S. initiated civil defamation proceedings against the applicants and claimed compensation of 50,000 convertible marks (BAM)^[1]. M.S submitted that she had learned about the content of the letter shorlty after it had been sent by the defendants, but that she did not know who gave it to the media. After the letter was published, the Governor of BD annulled the proceedings for the appointment of a director of the public radio station.

8. On 29 September 2004 the BD Court of First Instance (“the Court of First Instance”) rejected the claim. It held that the applicants could not be liable for the alleged defamation because they had not published the letter in the media. The relevant part of the judgment reads as follows:

“From the defendants’ letter, it is clear that it was privately sent to the Governor, to the President of the Assembly and to the Supervisor for Brčko District...and it was not sent to the media... [T]he aim of the letter was not dissemination of unverified information to public, but bringing the attention of the competent authorities to certain issues and to enable them to draw certain conclusions on verification of that information.

Having examined the articles published in the media, the court concludes that none of them was published by the defendants in this case.”

9. M.S. appealed against that judgment to the BD Appellate Court ("the Appellate Court"). On 16 May 2005 the Appellate Court quashed the judgment of 29 September 2004 and decided to hold a new hearing.

10. On 11 July 2007 after having examined several witnesses (including the two employees of the BD public radio from whom the applicants received the information presented in their letter), the Appellate Court found that the contested letter contained some value-judgments but also the statements of facts which had been untrue and damaging to M.S.ʼs reputation. It held that for the liability for defamation to be established under section 6(1) of the Defamation Act 2003 it was irrelevant that the applicants did not publish the letter. The Appellate Court ordered the applicants to inform the International Supervisor for BD, the President of the Assembly of BD and the BD’s Governor about the retraction of their statements within 15 days, in default of which they had to pay BAM 2,500 in damage to M.S., together with default interest at the statutory rate from 11 July 2007. They were further ordered to publish the judgment at their own expense.

11. On 15 November 2007 M.S. filed a request for the enforcement of the above judgment to the Court of First Instance. She proposed, inter alia, that the court send the judgment of 11 July 2007 for publication at the applicants’ expense.

12. On 5 December 2007 the Court of First Instance issued a writ of execution.

13. On 12 December 2007 the applicants paid BAM 2,825 (approximately 1,445 euros (EUR)) by way of the enforcement of the judgment of 11 July 2007.

14. On 27 March 2009 the Court of First Instance closed the enforcement proceedings.

15. In the meantime, on 15 October 2007 the applicants complained about the violation of their right to freedom of expression to the Constitutional Court of Bosnia and Herzegovina ("the Constitutional Court").

16. On 13 May 2010 the Constitutional Court held that the interference with the applicants’ right to freedom of expression was “necessary in a democratic society” and concluded that there had been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina and Article 10 of the Convention. The relevant part of the decision reads as follows:

“34. At the outset the Constitutional Court notes that the appellants did not deny that their liability for defamation was based on the Defamation Act 2003 and that, therefore, the interference with the right [to freedom of expression] protected by Article 10 of the European Convention was prescribed by law...

35. The impugned judgment was delievered in a civil defamation proceedings initiated by the plaintiff against the appellants...accordingly, the interference pursued the legitimate aim of the protection of the “reputation or rights of others”.

36. What remains to be determined is whether the interference complained of was “necessary in a democratic society”....

...

38. The Constitutional Court considers that the Appellate Court established without doubt that the impugned factual statements about M.S. were false and that the appellants were liable for defamation. From the submissions of the two witnesses, from whom the appellants received the information presented in the letter [concerning the part of the letter in which it was stated that M.S. ‘made a point of removing from the wall (and tore to pieces) the calendar with the schedule of religious services during the month of Ramadan and as the editor of the entertainment programme she banned broadcasting of sevdalinka arguing that that type of song had no cultural or musical value’], the Appellate Court established that there was an evident inconsistency between that what had been said to the appellants and that what they had reported in the letter. Furthermore, the statement from the impugned letter that M.S. gave an interview concerning the destruction of mosques was refuted by another witness who submitted that a subsequent verification had revealed that M.S. had not been the author of the said interview. Finally, the appellants failed to prove the veracity of the allegations that M.S. covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska. In view of the above, the Constitutional Court considers that in the present case the right of the appellants to report irregularities in the conduct of an official to a body competent to deal with such complaints cannot be premised on ascertaining manifestly untrue facts which go beyond the limit of acceptable criticism of civil servants. Accordingly, the court considers that the Appellate Court correctly concluded that there was ‘a pressing social need’ in the present case [for the interference with the appellants’ right to freedom of expression].

39. Furthermore, the Constitutional Court notes that the Appellate Court awarded non-pecuniary damage to M.S. because her reputation was affected by the untrue statements made in the impugned letter. ...The Constitutional Court has already stated in its previous jurisprudence that a person’s reputation forms part of her personal identity and psychological integrity...

...

43. The appellants...failed to verify the impugned statements beforehand as was their duty. The Appeal Court established that the appellants had damaged M.S.’s reputation by making untrue allegations, which caused her mental anguish...When deciding on the claim in respect of non-pecuniary damage and its amount, the Appellate Court took into account the purpose of those damages, as well as that it should not favour aspirations that are incompatible with its nature and social purpose.

44. [T]he Constitutional Court considers that a measure imposed on the appellants in the present case was proportionate to the aim pursued...The court further considers that the Appellate Court did not go beyond its discretionary power in deciding on the claim in respect of non-pecuniary damage...[T]he Constitutional Court finds that the reasons the Appellate Court gave were ‘relevant’ and ‘sufficient’ within the meaning of Article 10 of the European Convention.

45. In view of the above, the Constitutional Court considers that the interference with the appellants’ right to freedom of expression was ‘necessary in a democratic society’ and that, therefore, there has been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina and Article 10 of the European Convention.”

17. On 21 September 2010 the Constitutional Court’s decision was served on the applicants.

II. RELEVANT DOMESTIC LAW

A. Constitution of Bosnia and Herzegovina

18. The Constitution of Bosnia and Herzegovina (Annex 4 to the General Framework Agreement for Peace) entered into force on 14 December 1995.

Article II of the Constitution, in so far as relevant, reads as follows:

“3. Enumeration of Rights

All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms referred to in paragraph 2 above; these include:

...

h) Freedom of expression

...”

B. Defamation Act 2003 (Zakon o zaštiti od klevete Brčko Distrikta, Official Gazette of BD no. 14/03)

19. The relevant provisions of the Defamation Act 2003 of BD read as follows:

“Section 2

...

(a) the right to freedom of expression, guaranteed by the European Convention on Human Rights..., the Constitution of Bosnia and Herzegovin and the Statute of Brčko District, has a fundamental role in a democratic society, in particular where it concerns matters of political and general interest;

(b) the right to freedom of expression protects the content of information and the means of transmitting it...

...

Section 6

Whoever causes damage to the reputation of another by ascertaining or disseminating a falsehood in relation to that person, and by identifying that person to another, shall be liable for defamation.

For a defamation published in the media the responsible persons shall be the author, the editor in chief and the publisher, as well as other person who in any other way supervised the content of the publishing.

Liability for defamation in situations referred to above exists if falsehood was asserted or disseminated with malice or from negligence.

If a defamatory statement relates to a matter of public interest a defendant shall be liable for defamation if he knew that statement was false or negligently disregarded its inaccuracy.

The same standard of responsibility referred to above applies in a situation when defamatory statement was made in relation to a public servant...or a candidate for public office...

Exemptions from liability

Section 7

There is no liability for defamation:

(a) if defamatory statements are value judgments or if they are false only in irrelevant details but are essentially true ...

...

...”

C. Civil Obligations Act 1978 (Zakon o obligacionim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85 and 57/8, and Official Gazette of the Republic of Bosnia and Herzegovina nos. 2/92, 13/93 and 13/94)

20. The relevant provision of the Civil Obligations Act 1978 reads as follows:

“Non-pecuniary damages

Section 200

The court shall award non-pecuniary damages for physical pain, for mental anguish caused by loss of amenities of life, disfigurement, breaches of reputation, honour, liberty or the rights of personality or the death of a close relative, and for fear, if it finds that the circumstances of the case, in particular the intensity of the pain, anguish or fear and their duration, justify such an award, irrespective of any award of pecuniary damages, and even in the absence of pecuniary damage.

When deciding on a claim for non-pecuniary damages and its amount, the court shall take into account ... the purpose of those damages, as well as that it should not favour aspirations that are incompatible with its nature and social purpose.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

21. The applicants complained under Article 10 of the Convention that the domestic courts’ decisions had entailed interference with their right to freedom of expression that could not be regarded as necessary in a democratic society. Article 10 reads:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A. Admissibility

22. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicants

23. The applicants maintained that their intention had been to inform those in authority about certain irregularities in a matter of considerable public interest and to prompt them to investigate the allegations made in the letter. The letter had been sent privately and its subsequent publication had occurred without their knowledge. Moreover, the letter contained their value judgments concerning M.S.’s suitability for the position of a director of the BD public radio station. The subject matter of the letter was of a public interest nature since it concerned the suitability of a candidate for the post of a director of a multiethnic public radio station as well as the selection process.

(b) The Government

24. The Government agreed that there had been an interference with the applicants’ right to freedom of expression, but submitted that it had been prescribed by law, had pursued a legitimate aim and had been necessary in a democratic society.

25. The applicants’ liability for defamation had been established by the Appellate Court which had found that their letter contained both opinions (value judgments) as well as the untrue and damaging factual statements about M.S., who was a public servant at the material time. The applicants had failed to verify these facts before presenting them in the letter. The Constitutional Court upheld those findings. Moreover, considering that the letter was later published, through an unknown source, its content was made available to the general public and the consequences for M.S.’s reputation had become even more serious. Thus, it could not be argued that this case was only about private correspondence between the applicants and the competent authorities. The Government further maintained that it could not be excluded that the applicants had themselves sent the letter to the media.

26. Lastly, in view of the measure imposed on the applicants for defamation, the Government concluded that a fair balance was struck between the applicants’ right to freedom of expression and M.S.’s rights under Article 8 of the Convention.

2. The Court’s assessment

27. It is common ground between the parties, and the Court agrees, that the decisions of the domestic courts and the award of damages made against the applicants amounted to “interference by [a] public authority” with the applicants’ right to freedom of expression under the first paragraph of Article 10 of the Convention. It is also undisputed that the interference was “prescribed by law”, namely section 6 of the Defamation Act 2003, and pursued a legitimate aim, that of the protection of M.S.’s reputation. It follows that the main question to be addressed in the present case is whether the impugned measure was necessary in a democratic society.

28. The test of whether the interference complained of was “necessary in a democratic society” requires the Court to determine whether it corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities to justify it are relevant and sufficient. In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (for an analysis of the relevant principles in more detail, see, among many other authorities, Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts)).

29. The Court observes that in the present case the defamation claim was born out of the applicants’ private correspondence with the local authorities (see Kazakov v. Russia, no. 1758/02, § 26, 18 December 2008; Sofranschi v. Moldova, no. 34690/05, § 29, 21 December 2010; and Siryk v. Ukraine, no. 6428/07, § 42, 31 March 2011). In the impugned letter the applicants stated their complaints about M.S., who was the editor of the entertainment programme at the BD public radio at the material time and one of the candidates for the post of director of that radio station, as well as about the selection process. They claimed that their intention was to inform competent authority about certain irregularities in a matter of important public interest and to prompt them to investigate the allegations in the letter. While it is true that the impugned statements were subsequently made public, the Court notes that there was no evidence in the domestic proceedings that the applicants had participated in their publication. That was, indeed, the point of view of the first-instance court (see paragraph 8 above). Moreover, the Appellate Court only found the applicants liable for defamation by sending the impugned letter to the authorities competent for taking relevant further steps into the matter and this was upheld by the Constitutional Court. The Court will therefore refrain from taking into consideration any other alleged means of defamation of M.S. by the applicants (see, mutatis mutandis, Sofranschi, cited above, § 28).

30. The Court has in several cases observed that it may be necessary to protect public servants from offensive, abusive and defamatory attacks which are calculated to affect them in the performance of their duties and to damage public confidence in them and the office they hold (see Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999-I, and Lešník v. Slovakia, no. 35640/97, § 53, ECHR 2003-IV). The extent to which such protection might be deemed necessary depends on the particular circumstances of the case. In the present case, the Court is ready to accept that a candidate for a position of a director of a public radio may be considered to belong to that category of official. The Government maintained the same (see paragraph 25 above).

31. However, the Court reiterates that, as the applicants set out their grievances in correspondence submitted in their private capacity, the requirements of protection under Article 10 of the Convention have to be weighed not in relation to the interests of the freedom of the press or of open discussion of matters of public concern but rather against the applicants’ right to report irregularities in the conduct of an official to a body competent to deal with such complaints (see Zakharov v. Russia, no. 14881/03, § 23, 5 October 2006; Kazakov, cited above, § 28; and Siryk, cited above, § 42). That citizens should be able to notify competent State officials about the conduct of civil servants which to them appears irregular or unlawful is one of the precepts of the rule of law (see Zakharov, cited above, § 26).

32. Turning to the present case, the Court notes that the applicants’ letter, sent to the highest authorities of BD, contained factual allegations about M.S.’s alleged misconduct as well as some value judgments. In its practice, the Court has distinguished between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see Jerusalem v. Austria, no. 26958/95, § 42, ECHR 2001-II). However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see De Haes and Gijsels v. Belgium, no. 19983/92, § 47, 24 February 1997).

33. The Court observes that in the present case the domestic courts made a distinction between statements of facts and value judgments (contrast with Sofranschi, cited above, § 32). The Appellate Court had premised its finding of the applicants’ liability on inaccuracy of factual statements made in their letter, after having heard the witnesses (see paragraph 10 above). There is nothing in the case-file to indicate that the applicants did not have an effective opportunity to adduce evidence in support of their allegations and to thereby establish their truthfulness (unlike the position in Busuioc v. Moldova, no. 61513/00, § 88, 21 December 2004; Savitchi v. Moldova, no. 11039/02, § 59, 11 October 2005; and Sofranschi, cited above, § 31).

34. The Court notes that the applicants did not resort in their letter to abusive, strong or intemperate language. Moreover, it does not consider that their complaint was vexatious or that it constituted a gratuitous personal attack on M.S. However, as the domestic courts correctly concluded, the applicants had acted negligently in reporting M.S.’s alleged misconduct. It appears that they had simply passed on the information they received without making a reasonable effort to verify its accuracy. In addition, when the applicants were ordered by the Appellate Court to inform the International Supervisor for BD, the President of the Assembly of BD and the BD’s Governor about the retraction of their statements, they failed to do so (see paragraph 10 above).

35. In the overall circumstances of the instant case, the Court finds that the solution of the domestic courts struck a fair balance between the competing interests of the claimant and those of the applicants, and the reasons given to justify their decisions were “relevant and sufficient” and met a “pressing social need”. The Court also had regard to the award of damages made against the applicants in the context of a civil action and did not find it to be disproportionate. Therefore, the Court does not see any serious reason to substitute its own assessment for that of the Constitutional Court which examined the question at issue with care and in line with the principles laid down by the Court’s case-law.

36. Accordingly, there has been no violation of Article 10 of the Convention.

FOR THESE REASONS, THE COURT,

1. Declares, unanimously, the application admissible;

2. Holds, by four votes to three, that there has been no violation of Article 10 of the Convention.

Done in English, and notified in writing on 13 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Guido Raimondi
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint separate opinion of Judges Nicolaou, Tsotsoria and Vehabović is annexed to this judgment.

G.R.A.
F.E.P.

[1] The convertible mark uses the same fixed exchange rate to the euro that the German mark has: EUR 1 = BAM 1.95583.

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You are here: BAILII >> Databases >> European Court of Human Rights >> MEDZLIS ISLAMSKE ZAJEDNICE BRCKO AND OTHERS v. BOSNIA AND HERZEGOVINA - 17224/11 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2015] ECHR 873 (13 October 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/873.html Cite as: 63 EHRR 5, (2016) 63 EHRR 5, [2015] ECHR 873