DISSENTING OPINION OF JUDGE K Ū RIS

1. It is often said that hard cases make bad law. This case stands out as a hard one owing to one crucial imponderable, namely: who disseminated the information (which, in fact, was disinformation)? For had it not been disseminated, it is likely that this case, in which the central issue concerned the dignity and reputation of a person, M.S., tarnished as a result of that dissemination to a wider public, and not to the few people to whom the information was initially sent, would never have existed. The majority, like the Brčko District Court of Appeal and the Constitutional Court of Bosnia and Herzegovina, attribute the fact that the information in question was disseminated and the resulting harm solely to the applicants.

I do not want to be misunderstood. In no way do the majority openly assert that the information was disseminated by the applicants. On the contrary, the majority state that “the applicants ’ liability for defamation should be assessed only in relation to their private correspondence with local authorities, rather than the publication of the letter in the media ... or any other means” and the judgment contains repeated assurances that “it was not proven that they had been responsible for its publication” (see, respectively, paragraphs 90 and 91 of the judgment). The applicants are found to be at fault not for disseminating this information themselves, but for it having been disseminated , because it was the applicants ’ letter to persons whom they thought to be the competent authorities that started the process, which until then had been limited to rumours circulating in the city of Brčko (see, for example, paragraphs 101 and 114 of the judgment). They are found to be at fault for the outcome not because they initiated the process with a view to deliberately bringing about that outcome, which was the actual dissemination of the information in question and the ensuing harm done to M.S., but because they triggered the process involved. Though not directly blaming the applicants for the publication of their letter in the media, the majority blame them for “open[ing] a possibility for public debate and aggravat[ing] the harm to M.S. ’ s dignity and professional reputation” (see paragraph 106 of the judgment). The situation is comparable to a vendor being held responsible for “opening a possibility” to achieve the “end result” in a “process” in which he sold a gun to someone who then used it to shoot an innocent person. But there is – or should be – a difference between a situation where a vendor sells a gun to someone who is clearly an intoxicated furious madman with no identity papers and one where he sells it to someone who has all the requisite papers and there are no reasons to suspect that the gun might be used for harmful purposes. Holding the vendor equally responsible for the “end result” in both situations would not be fair. Case-law which permits such an equation based on attribution of fault in a situation like that of the applicants cannot be called fair law.

As a consequence of this hard case, we have bad law.

2. I agree with the arguments expressed by the three dissenters in the Chamber case, Judges Nicolaou, Tsotsoria and Vehabović, as well as with many of the arguments of the latter judge expressed in his dissenting opinion in the Grand Chamber case (which I have had the privilege of reading before writing my own).

3. I must admit at the very outset that I also agree, even if not in each and every detail, with the general principles relied upon in the instant judgment. However, I disagree with their application to the facts of the case. This application is based on at least four fictions. Too many for one case. What is more, these fictions are not “classic” legal fictions, which are often indispensable for finding legal solutions in complicated cases. They pertain to factual circumstances. All the unclear factual circumstances, without a single exception , have been interpreted to the detriment of the applicants.

4. The first fiction is the inference that it was on account of the applicants ’ conduct that the defamatory information was publicly disseminated because it was they who sent a letter containing defamatory information to the authorities, even if the notion of “authorities” here encompasses only a “limited number of State officials” (see paragraph 105 of the judgment). The applicants considered their letter to be “private and confidential” (see paragraph 54 of the judgment). The respondent Government maintained that that letter “contained no indication that it had been of a confidential nature” (see paragraph 58 of the judgment). The latter assertion is somewhat strange because it contradicts, to a certain extent, even the assessment of the nature of the correspondence by the Constitutional Court of Bosnia and Herzegovina, which accepted that the applicants ’ correspondence with the Brčko District authorities was indeed private. The majority also accepted as much, reiterating their assessment that the information was of a private nature several times throughout the judgment (see paragraphs 33, 71, 83, 90, 91 and 105 of the judgment). Whereas “private” may not in all cases amount to “confidential”, the applicants ’ assertion that their letter was not only “private” but also “confidential” deserved a much closer look, especially in view of the fact that it was sent not just to “someone”, but to the “State officials” of the “highest authorities” of the Brčko District, as acknowledged by the Court (see paragraphs 10 and 105 of the judgment). Their assertion also deserved closer examination in view of the provisions of Article 10 § 2 of the Convention, which, being the only Article of the Convention that explicitly underlines the duties and responsibilities of the freedom-holders, allows – and indirectly calls – for restrictions of the freedom of expression for “preventing the disclosure of information received in confidence”, at least where the dissemination of sensitive information may harm personality rights. Unfortunate ly, the judgment does not contai n any analysis as to how the authorities (State officials), to whom the applicants ’ letter containing such sensitive information was addressed, should have treated it under the domestic law, or to what they actually had or had not done to prevent the disclosure of that information, which could potentially harm the dignity and reputation of the person concerned. In particular, the telling fact that the person in question admitted that she had “learnt of the letter shortly after it had been sent by the applicants” (see paragraph 15 of the judgment), that is, not after it was published but prior to publication, should have been given due prominence and was not. The majority (like the domestic courts) are satisfied with Government ’ s submission that “letters sent to the authorities in the respondent State were frequently leaked to the public before the authorities could take any measure with respect to the information received” (see paragraph 60 of the judgment). The third-party interveners rightly warned against a low level of protection to citizens who reported information to the authorities which “encourage[d] the leaking of information to the public to the detriment of reporting to the competent authorities” (see paragraph 63 of the judgment), but this warning went unheeded. Instead, the majority confine themselves to accepting that “the applicants ’ defamatory accusations ... had been leak ed to the press” (see paragraph 106 of the judgment) – and this to the detriment of the applicants, not the authorities.

5. The second fiction is the inference that the applicants did not act as messengers because even though they “had introduced their letter with the words ‘ according to our information ’ ... they “had not clearly indicated that they had acted as messengers” and, therefore, “implicitly presented themselves as having direct access to that information”, consequently, they “assumed responsibility for the statements included in their letter” (see paragraph 100 of the judgment).

This is simply not convincing. Does the conclusion reached mean that the authors of letters reporting allegations to the authorities now have to begin with the explicit caveat that they are “messengers”, and that expressions such as “according to our information” will no longer suffice? It is rather capricious to require that the applicants “explicitly [say] in the letter that part of the information which they passed on to the authorities had emanated from other sources”. A strange epistolary standard has indeed been introduced by the Court. But isn ’ t it the whole text of the letter which should matter? And the text in question contained the words “according to our information”, which meant that the applicants were in possession of some information, but not that they were its ultimate source. These words do not suggest at all that they had “direct access to that information”. Moreover, whether the applicants obtained this information from their direct, or maybe indirect, access to its sources, is of no relevance at all. Admittedly, the tone of the letter showed that the applicants fully believed that information to be true. However, this does not amount to their having “assumed responsibility for the statements included in their letter”.

6. The third fiction is that the applicants should and could have verified the information which they included in their letter to the authorities prior to sending it. Of course, such verification would have been most desirable. Had the applicants been, to use the words of the Government, “more vigilant” (see paragraph 59 of the judgment) and had they verified that information and ascertained themselves that it was untrue, they probably would not have sent the letter.

The Brčko District Court of Appeal and the Constitutional Court of Bosnia and Herzegovina were of the opinion that the information contained in the letter could be verified (see paragraph 33 of the judgment). I respectfully disagree – at least in part. Indeed, the information as to the author, or “the lady in question” as the applicants called M.S. in their letter, of an interview published in the weekly NIN , could be verified (even if it was published in another country, Serbia). But it would not have been so easy to verify the information which served as a basis for other allegations against M.S. As a matter of principle, it is very difficult to verify the truthfulness of rumours as a very specific form of social communication. It would have been even more difficult for the applicants (as well as for many others, except the authorities which are probably the only ones in possession of the necessary administrative means) to be very “vigilant” and verify rumours in a society such as Bosnia and Herzegovina, which has been torn apart by long-standing inter-ethnic mistrust and even bloody conflicts, especially if those rumours go – as in the instant case – to the very heart of this mistrust. It is easy to conclude that the applicants can and must be blamed for not “making reasonable efforts” to verify the rumours (see paragraphs 33, 53 and 117 of the judgment). But what, in the circumstances, would have been more “reasonable” for them than to forward the rumour-based information (which they sincerely thought to be true) to the authorities for “appropriate reaction”, which, by definition, presupposed verification?

The majority have an answer to this question. They say that “an NGO performing a public watchdog role ... will often dispose of greater means of verifying and corroborating the veracity of criticism than would be the case of an individual reporting on what he or she has observed personally” (see paragraph 87 of the judgment; emphasis added). This is true in most cases. But can this presumption be correct and fully applicable in this particular case? What precisely could these “greater means” have been with respect to almost all the allegations (that is to say, except the one related to the authorship of the interview)? The majority do not name a single one.

The method employed by the majority in its analysis is dubious: it is induction . Having rightly said that “the verification of that fact [regarding the authorship of an interview] prior to reporting would not have required any particular effort on the part of the applicants” (see paragraph 115 of the judgment), they apply the same standard to all the other allegations . For instance, they state that the applicants did not produce ... any evidence that they had made any effort to verify the veracity of that rumour [regarding the coat of arms] before reporting it to the authorities” (see paragraph 114 of the judgment). However (and one does not have to go deeply into either David Hume or Karl Popper), while deductive inferences are certain, inductive inferences are only probable and have to be supported by additional evidence. Therefore I – again – ask the majority: how precisely can the truthfulness of rumours be verified in general, and how can it be verified in an adverse s ocial environment in particular?

The majority seem to be satisfied with stating that “ the applicants ... were bound by the requirement to verify the veracity of the allegations submitted against M.S. [which is] inherent in the Code of Ethics and Conduct for NGOs ... and it is to be seen in the context of the “responsibilities” in the operation of NGOs” (see paragraph 109 of the judgment). First of all, although the Fundamental Principles on the Status of Non-Governmental Organisations, to which the majority refer in the context of “ ‘ responsibilities ’ in the operation of NGOs” speak of “encourage[ment of NGOs] to participate in ... mechanisms for dialogue, consultation and exchange” (see paragraphs 45 and 86 of the judgment), the Code of Ethics referred to is subsequent to the material time, that is to say, to the time when the applicants sent their letter to the Brčko District authorities. But what is even more important is that the fact that “the applicants were perceived ... and, indeed, acted as representatives of the interests of particular segments of the population” in the Brčko District , in the majority ’ s opinion, “increased their duty to verify the accuracy of the information before they reported it to the authorities” (see paragraph 109 of the judgment; emphasis added). I can agree that the said duty was “increased”. This, however, does not mean that their possibilities also increased. It is not impossible that they could have decreased.

7. The fourth fiction stems from the first three and crowns them all. It is that the applicants ’ allegations against M.S. did not amount to a request for the authorities to verify that information. True, the tone of the applicants ’ letter was in the nature of an ultimatum. Nevertheless (as already hinted in paragraph 6 above), an “appropriate reaction” by the “competent authorities” (who must also have sensed the pain permeating the applicants ’ complaint) presupposed verifying the information received from the applicants. It does not appear from the information submitted to the Court that these authorities had done anything at all, at least before the letter was leaked to the media, notwithstanding that the “very first” complaint (completely overlooked by the majority) does not appear to have been baseless, as the inter-ethnic balance in the composition of the panel for the selection of the director of the radio was indeed not observed.

8. In other circumstances I would have welcomed a similar judgment, which defends personality rights. Most unfortunately, judgments which defend personality rights against defamation are a rare bird in the Court ’ s case-law. However, in the specific circumstances of the instant case it is indeed difficult to accept that the applicants were responsible for making public the information provided in their letter to the Brčko District authorities and for the harm done to M.S. by this publicity. I have to repeat that this is not something which the majority state directly. However, the whole reasoning of this judgment has been an exercise in implication by attribution , an exercise in which each and every unclear factual circumstance has been interpreted to the detriment of the applicants, thus belittling the expression of their concerns about the dangers to the fragile inter-ethnic balance and civil peace in their troubled country and equating them to trivial rumour-spreading, and downgrading the applicants themselves to irresponsible and hidebound calumniators.

[1] . Brčko District is a self-governing administrative unit under the sovereignty of Bosnia and Herzegovina. According to its Statute, it is represented by the Governor (who is elected by the District Assembly). The legislative power is exercised by the District Assembly. The executive power is exercised by the District Government (presided over by the Governor). The judicial power is exercised by the District Courts (Article 19 of the Statute).

[2] . Bosniacs were known as Muslims until the 1992-95 war. The term “Bosniacs” should not be confused with the term “Bosnians”, which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin or religious affiliation .

[3] . The Statute of the BD is the Highest Act. Article 20(1) of the Statute provides that “public employment with the District ... shall reflect the composition of the population.”

[4] . Serbs are an ethnic group whose members may be natives of Serbia or of any other State of the former Yugoslavia . The term “Serb” is normally used to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with the term “Serbian” which normally refers to nationals of Serbia.

[5] . Croats are an ethnic group whose members may be natives of Croatia or of any other State of the former Yugoslavia . The term “Croat” is normally used to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with the term “Croatian” which normally refers to nationals of Croatia.

[6] . A weekly newspaper published in Serbia.

[7] . Sevdalinka is a “Bosnian-Herzegovinian urban song ” , Cultural characteristics of Bosnian urban song - sevdalinka, Ms Karača Tamara, Music , I/1 (1), 1997: 55.

[8] . One of the entit es within Bosnia and Herzegovina.

[9] “…M.S. stated that she had learned of the letter shortly after it had been sent by the applicants…”