FOURTH SECTION

DECISION

Application no. 40296/18 Marinko MARKOVIĆ and Ž eljko ARSI Ć against Bosnia and Herzegovina and 3 other applications (see list appended)

The European Court of Human Rights (Fourth Section), sitting on 20 October 2020 as a Committee composed of:

Faris Vehabović , President, Pere Pastor Vilanova , Tim Eicke, judges, and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to the above applications lodged on the dates indicated in the appended table ,

Having regard to the observations submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, Mr Marinko Marković and Mr Ž eljko Arsić , are nationals of Bosnia and Herzegovina. They brought four applications before the Court (see the appended table). They were represented before the Court by Mr O. Borovac , a lawyer practising in Goražde .

2 . The Government of Bosnia and Herzegovina (“the Government”) were initially represented by their Acting Agent, Ms M. Miji ć , and then by Mr M. Lučić , Minister of Human Rights and Refugees of Bosnia and Herzegovina.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 31 May 2013 the Višegrad Secondary School held its graduation ceremony, which traditionally included a procession of students along the town ’ s main street. At that time, the applicants were teachers in that school.

5 . On the day of the procession, demands were made on the school ’ s headteacher to include Andrićgrad [1] , a new theme park dedicated to Ivo Andrić [2] , in the procession route. The school ’ s headteacher consulted the teachers at the school. The applicants and two other teachers were against the idea because Andrićgrad was still under construction (it was officially opened on 28 June 2014). Only one teacher, whose son worked at Andrićgrad , was in favour of including the theme park in the procession route. It was finally decided that the procession would adhere to the traditional route.

6 . The applicants were at the front of the procession, whereas some other teachers were at the rear. The procession was escorted by the police. After the procession, the participants made their way to the graduation party in their own cars. A small group of students decided to stop off in Andrićgrad , to take photos, before going on to the party.

7 . The day after, the applicants discovered in the local media that they had been accused by S.V., one of the students, and Ž.M., the manager of Andrićgrad , of having prevented the procession from going to Andrićgrad . Ž.M. had even accused the applicants of having done so on the instructions of the SDS (a political party in power in Višegrad at that time, but in opposition at Entity level in the Republika Srpska ). S.V. ’ s and Ž.M. ’ s remarks were clearly recognisable as quotations. The local media published also denials by the school ’ s headteacher and one of the applicants, claiming that Andrićgrad had not been included in the procession route only because Andrićgrad had still been under construction and that no one had prevented the students from going to Andrićgrad after the procession. They maintained that there had been no political reasons for their decision.

8 . Following an on-site visit, on 6 June 2013 the Education Authority of the Republika Srpska issued a report according to which Andrićgrad had not been included in the procession route and no one had prevented the students from going to Andrićgrad after the procession. No disciplinary measures were therefore taken against the applicants.

9 . The applicants brought defamation proceedings, seeking damages from a number of media outlets. The present case concerns four such sets of proceedings in which the defendants were Nezavisne novine , Glas Srpske , Pres and SRNA (three daily newspapers and a local news agency).

10 . On different dates between 17 April 2014 and 16 January 2015, the Višegrad Court of First Instance dismissed their claims. It held that the news items in issue did not concern the applicants ’ private life, but a social event which had acquired political connotations. Furthermore, the defendants had not made any statements of fact, but had merely disseminated statements made by other persons. They had therefore not been required to prove the truth of those statements.

11 . On different dates between 30 December 2014 and 11 November 2015, the Istočno Sarajevo District Court upheld the first-instance decisions. It held that the statements disseminated by the defendants were substantially true (the applicants had indeed been opposed to including Andrićgrad in the procession route).

12 . By the end of 2015 the applicants lodged four constitutional appeals. They complained under Article 6 of the European Convention on Human Rights (“the Convention”) about the outcome of the defamation proceedings mentioned above.

13 . On 31 January 2018 the Constitutional Court gave four decisions, examining the applicants ’ appeals under Article 6 of the Convention and, of its own motion, under Article 8. It applied the criteria laid down in the case-law of the Court. In particular, it found that the defendants had essentially reported what had been said by two eyewitnesses (S.V. and Ž.M.) and that there had been no good reason not to believe them. In addition, the defendants had carried out a basic check of the accuracy of the allegations before publishing them: they had immediately contacted the school ’ s headteacher and had published his denial. They had also published a denial by one of the applicants once they had obtained it. The Constitutional Court further noted that the statements disseminated by the defendants were substantially true (the applicants had been opposed to including Andrićgrad in the procession route). It therefore concluded that the defendants had acted in good faith. Taking also into consideration the fact that the news items in question concerned a matter of public interest, the Constitutional Court dismissed the applicants ’ appeals.

14 . The Defamation Act 2001 of the Republika Srpska ( Zakon o zaštiti od klevete , Official Gazette of the Republika Srpska no. 37/01) regulates civil liability for defamation. The relevant provisions read as follows:

Section 1

“This Act regulates the acceptable limitations on freedom of expression with regard to civil liability for harm caused to the reputation of a natural or legal person by the making or disseminating of something false, while acknowledging that:

(a) the right to freedom of expression, as guaranteed by the Constitution of the Republika Srpska and the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitutes one of the essential foundations of a democratic society, in particular where matters of political and public concern are involved;

(b) the right to freedom of expression protects both the contents of an expression as well as the manner in which it is made, and is not only applicable to expressions that are received as favourable or inoffensive but also to those that might offend, shock or disturb;

(c) the media play an essential role in the democratic process as public watchdogs and purveyors of information.”

Section 2

“This Act shall be interpreted so as to maximise the principle of freedom of expression.”

Section 3

“For the purposes of this Act:

(a) ‘ expression ’ means any statement, including but not limited to, any oral, written, audio, visual or electronic material regardless of its content, form and manner of making or dissemination;

...”

Section 5

“(1) Any person with legal capacity who causes harm to the reputation of a natural or legal person by making or disseminating an expression of something false identifying that person to a third person is liable for defamation if he or she is responsible for the harm as the author, editor or publisher of the expression, as someone who otherwise exercised effective control over its contents, or as the legal person that published the expression.

(2) A person referred to in subsection (1) above is responsible for the harm caused if he or she acted wilfully or negligently in making or disseminating the expression.

(3) Where the expression relates to a matter of political or public concern, a person referred to in subsection (1) above is responsible for the harm caused in making or disseminating the expression if he or she knew that the expression was false or acted in reckless disregard of its veracity. The same standard of responsibility applies where the injured person is or was a public official or is a candidate for public office, and exercises or appears to the public to exercise substantial influence over a matter of political or public concern.

...”

Section 6

“There shall be no liability for defamation where:

(a) the expression is an opinion, or where the expression is substantially true;

...

(c) the making or dissemination of the expression was reasonable.

In making such a determination, the court shall take into account all of the circumstances of the case including, but not limited to, the manner, form and time of the making or dissemination of the expression, the nature and degree of harm caused, good faith and adherence to generally accepted professional standards by the person who allegedly caused the harm, the likelihood that the harm would have occurred had the expression not been made or disseminated, and whether the expression constitutes a fair and accurate report of the expressions of others, concerns a matter of the allegedly injured person ’ s private life, or involves a matter of political or public concern.”

Section 7

“The necessity of any interference with the right to freedom of expression, through the finding of liability and the awarding of compensation under this Act, must be convincingly established in accordance with Article 10 § 2 of the European Convention on Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights.”

COMPLAINTS

15 . The applicants complained under Article 6 of the Convention about the outcome of the civil defamation proceedings described above. The case also falls to be examined under Article 8 of the Convention, and the Government were given notice of the applications under that Article as well.

THE LAW

16 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

17 . While largely complaining about the outcome of civil proceedings, the applicants relied on Article 6 § 1, which guarantees the right to a “fair hearing”. The relevant parts of Article 6 § 1 read as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

18 . The Government asserted that this complaint was clearly of a fourth-instance nature and therefore inadmissible. The applicants disagreed.

19 . It should be borne in mind – since this is a very common source of misunderstanding on the part of applicants – that the “fairness” required by Article 6 is not “substantive” fairness (a concept which can only be applied by the trial judge), but “procedural” fairness. This translates in practical terms into adversarial proceedings in which submissions are heard from the parties and they are placed on an equal footing before the court. If it were otherwise, the Court would be acting as a court of third or fourth instance, which would be to disregard the limits imposed on its action (see Prevljak and Others v. Bosnia and Herzegovina ( dec. ), no. 127/10, 10 April 2012).

20 . The applicants had the benefit of adversarial proceedings, were able to adduce the arguments and evidence they considered relevant to their case, and had the opportunity to challenge effectively the arguments and evidence adduced by the defendants. All their arguments which, viewed objectively, were relevant to the resolution of the case were duly heard and examined by the courts and the factual and legal reasons for the decisions in question were set out at length. The proceedings taken as a whole were thus fair.

21 . For that reason, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

22 . Article 8 of the Convention reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

23 . The Government maintained that this complaint was manifestly ill-founded for the reasons set out in the Constitutional Court ’ s decisions given in this case (see paragraph 13 above). The applicants disagreed, emphasising, in particular, that the statements in issue disseminated by the four media outlets were simply false and that those media outlets should have therefore been ordered to pay them damages.

24 . The Court has held that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life. The concept of “private life” is a broad term which also covers the physical and psychological integrity of a person. In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012, and A. v. Norway , no. 28070/06, § 64, 9 April 2009). It has not been disputed that Article 8 is applicable in the present case.

25 . However, that protection of private life has to be balanced against the right to freedom of expression, enshrined in Article 10. The main question in the present case is whether the State has, in the context of its positive obligations under Article 8, achieved a fair balance between the applicants ’ right to protection of their reputation, which is an element of their “private life”, and the other parties ’ right to freedom of expression guaranteed by Article 10 of the Convention (see Axel Springer AG , cited above, § 84, and Pfeifer v. Austria , no. 12556/03, § 38, 15 November 2007).

26 . The Court reiterates that the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by a publisher who has published an offending article or under Article 8 of the Convention by a person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect (see Axel Springer AG , cited above, § 87).

27 . Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG , cited above, § 88).

28 . In the present case, the domestic courts held that the news items in issue concerned a matter of public interest (see paragraph 13 above). They further emphasised that the applicants had pursued civil defamation proceedings against media outlets which had merely disseminated statements made by other persons (see paragraph 10 above). The Court has already had occasion to state that punishing a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 142, ECHR 2015). The domestic courts held that there were no such reasons in the present case, considering that the defendants had acted in good faith (see paragraph 13 above).

29 . The Court is aware of the context of the present case (see paragraph 7 above) and the fact that some of the media outlets involved do not always act in good faith when reporting about government critics (see decisions nos. AP-4141/16 of 19 December 2018 and AP-1854/17 of 24 April 2019, in which the Constitutional Court held that Nezavisne novine and Glas Srpske had participated in a smear campaign against the local chapter of Transparency International). However, there is nothing in the case file which would allow the Court to depart from the finding of the domestic courts in the present case.

30 . The Court considers that the domestic courts put forward sufficient grounds in finding that the media organisations ’ right to impart information had to be given more weight than the applicants ’ right to the protection of their reputation in the particular circumstances of this case. Accordingly, there is no reason to conclude that the domestic courts overstepped their margin of appreciation (see, mutatis mutandis , Polanco Torres and Movilla Polanco v. Spain , § § 44-54, no. 34147/06, 21 September 2010).

31 . It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 19 November 2020 .

Ilse Freiwirth Faris Vehabović Deputy Registrar President

Appendix

No.

Application no.

Case name

Lodged on

1

40296/18

Marković and Arsić v. Bosnia and Herzegovina

17/08/2018

2

40306/18

Marković and Arsić v. Bosnia and Herzegovina

17/08/2018

3

41427/18

Marković and Arsić v. Bosnia and Herzegovina

20/08/2018

4

41463/18

Marković and Arsić v. Bosnia and Herzegovina

17/08/2018

[1] Andrićgrad is a joint venture between Emir Kusturica , an internationally acclaimed film director, and the government of the Republika Srpska , one of the entities of Bosnia and Herzegovina.

[2] The only Yugoslav ever to be awarded the Nobel Prize in Literature.