Communicated on 6 February 2014

FOURTH SECTION

Application no. 17224/11 MEDŽLIS ISLAMSKE ZAJEDNICE BRČKO and O thers against Bosnia and Herzegovina lodged on 21 January 2011

STATEMENT OF FACTS

The applicants are 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 ).

A. The circumstances of the case

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

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 referring to the appointment of the director of the public radio station. They referred, in particular, to M. Sʼ s candidacy for that position. The relevant part of the letter read 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 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 program 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 multi-ethnic 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.”

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

On 29 May 2003 M. S. initiated civil defamation proceedings against the applicants and claimed compensation of 50,000 convertible marks (BAM) [1] .

On 29 September 2004 the Brčko District Court of First Instance rejected the claim. It held that the applicants could not be held responsible for alleged defamation because they did not publish 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.”

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

On 11 July 2007, after having examined several witnesses (including those from whom the applicants received the information presented in the impugned letter), the Appelate Court found that the contested statements contained some value-judgments but also the factual statements which had been untrue and damaging to M.S. ʼs honour and dignity. It held that for the liability for defamation under section 6(1) of the Defamation Act 2003 to be established it was irrelevant that the applicants did not publish the letter.

The Appelate Court ordered the applicants to inform the International Supervisor for BD, the President of the Assembly of BD and the BD ' s Governor about retraction of their statements within 15 days, in default of which they had to pay BAM 2,500 in damage to M.S. They were further ordered to publish the judgment at their own expense.

On 13 May 2010 the Constitutional Court of Bosnia and Herzegovina ("the Constitutional Court") upheld that judgment. As regards the falsehood of the factual statements, it essentially endorsed the Appelate Court ' s reasons. However, the Constitutional Court did not indicate what its position was as regards the publication point.

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

B . The Constitution of Bosnia and Herzegovina

The Constitution of Bosnia and Herzegovina (Annex 4 to the General Framework Agreement for Peace) entered into force on 14 December 1995. In March 2009 the Parliamentary Assembly of Bosnia and Herzegovina adopted Amendment I to the Constitution (published in the Official Gazette of Bosnia and Herzegovina no. 25/09), which, in so far as relevant, reads as follows:

“ In the Constitution of Bosnia and Herzegovina, after Article VI(3), a new Article VI(4) shall be added and shall read:

4. Brčko District of Bosnia and Herzegovina

The Br č ko District of Bosnia and Herzegovina, which exists under the sovereignty of Bosnia and Herzegovina and is subject to the responsibilities of the institutions of Bosnia and Herzegovina as those responsibilities derive from this Constitution, whose territory is jointly owned by (a condominium of) the Entities, is a unit of local self-government with its own institutions, laws and regulations, and with powers and status definitively prescribed by the awards of the Arbitral Tribunal for the Dispute over the Inter-Entity Boundary in the Brč ko Area. The relationship between the Brč ko District of Bosnia and Herzegovina and the institutions of Bosnia and Herzegovina and the Entities may be further regulated by law adopted by the Parliamentary Assembly.

...”

C. Relevant domestic law

The relevant provisions of the Defamation Act 2003 of Brčko District ( Zakon o zaštiti od klevete , Official Gazette of Brčko District no. 14/03) read as follows:

Section 6

“ Whoever c auses 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 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 malic or from negligence.

If a defamatory statement relates to a matter of public interest a defendant shall be liable for defamation if he or she 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 public servant...or a candidate for public function...

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) if assertion or dissemination was reasonable.

...”

The relevant provision of the 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), 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.”

COMPLAINT

The applicants complain under Article 10 of the Convention that the civil proceedings for defamation brought against them breached their right to freedom of expression .

QUESTION TO THE PARTIES

Has there be en a violation of Article 10 of the Convention having regard, in particular, to the means of expression (letter of complaint to the competent authorities of BD), the public interest nature of the subject matter and the reasons given by the domestic courts (see Grigoriades v. Greece , 25 November 1997, Reports of Judgments and Decisions 1997 ‑ VII ; Zakharov v. Russia , no. 14881/03, 5 October 2006 ; Kazakov v. Russia , no. 1758/02, 18 December 2008 ; Sofranschi v. Moldova , no. 34690/05 , 21 December 2010 ; and Siryk v. Ukraine, no. 6428/07 , 31 March 2011 )?

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