Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina: condemnation for four NGOs confirmed by Strasbourg Court

On June 27, 2017, the Grand Chamber of the European Court of Human Rights (ECtHR) upheld the Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina decision. The latter was issued on October 13, 2015 by the 4th Section of the same Court and found no violation of Article No. 10 of the European Convention on Human Rights. The following text analyses the 2015 decision and was originally published by the Columbia Global Freedom of Expression Initiative .

Case Summary and Outcome

Four non-governmental organizations from Brčko District of Bosnia and Herzegovina wrote a letter to several local government offices, protesting the appointment of a new director for the district’s public radio station. They specifically criticized that the nomination process completely disregarded the required proportional representation among different ethnic groups and that the candidate was not qualified for the position as she had made a number of degrading statements against Muslims. The letter was subsequently published by three different daily newspapers. The candidate then brought a civil defamation action against the NGOs.

In September 2004, the Brčko District’s court of first instance dismissed the judgment, holding that the NGOs could not be held liable for defamation because they did not publish the letter. On Appeal, the district’s appellate court reversed the dismissal upon finding that the letter contained false statement of facts and were damaging to the candidate’s reputation. The judgment was later upheld by the Constitutional Court of Bosnia and Herzegovina. In October 2015, the European Court of Human Rights found no violation of the right to freedom of expression under Article 10 of the European Convention, reasoning that in additional to value judgments, the letter at issue contained inaccurate factual allegations and that the NGOs failed to take reasonable effort in verifying their truthfulness.

Facts

In May 2003, four non-governmental organizations from Brčko District of Bosnia and Herzegovina, including the Islamic Community of Bosnia and Herzegovina and the Bosniac Charity Association wrote a letter to the district’s local government offices, criticizing the candidacy of a new director for the national public radio of Brčko. In the letter, the NGOs protested the nomination process for allegedly disregarding the proportional representation in selecting a new director. They also claimed that the candidate was “absolutely” disqualified for the position due to her past degrading statements against Muslims. The letter, for example, referred to a public interview in which the candidate said: “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.” [para. 5]

Subsequently, the letter was published by three daily newspapers in Brčko District. Upon publication, the candidate brought a civil defamation action against the NGOs, seeking money damages. A court of first instance in Brčko dismissed the lawsuit, reasoning that the NGOs could not be held liable for the statements that were published by local newspapers. It added that “the aim of the letter was not dissemination of unverified information to the 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.” [para. 7]

In July 2007, the Brčko District’s Appellate Court reversed the dismissal and found the NGOs liable for defamation under Section 6 of the Defamation Act of 2003. It held that the letter contained unverified and false statement of facts that were damaging the candidate’s reputation. Then in May 2010, the Constitutional Court of Bosnia and Herzegovina upheld the appellate court’s ruling by concluding that the NGOs’ liability for defamation did not violate their right to freedom of expression under Article 3 of the country’s Constitution nor it infringed Article 10 of the European Convention on Human Rights.

In January 2011, the NGOs filed an application in the European Court of Human Rights, alleging that their right to freedom of expression was violated as a result of the judicial proceedings concerning the defamation lawsuit.

Decision Overview

The NGOs argued that the subject matter of the letter at issue was of a public interest in nature because it concerned appointing the director of the district’s multi-ethnic public radio station. They also contended that the letter solely reflected their opinion about the candidate in light of her degrading statements made against Muslims; they emphasized that their intention was to inform government officials about “certain irregularities” surrounding the appointment process.

The government of Bosnia and Herzegovina, on the other hand, argued that the defamation liability was properly established by the appellate court upon finding that the letter contained false statement of facts and that the NGOs failed to verify their veracity. The government also pointed out that the organizations themselves sent the letter to the media.

For purposes of assessing the defamation judgment as an interference under Article 10 of the Convention, the Court first noted the uncontested facts that the judgment was prescribed by law, namely under Section 6 of the Defamation Act of 2003 and that it pursued the legitimate aim of protecting the reputation of the candidate. As such, the main issue before the Court was whether the interference was “necessary in democratic society” within the meaning of Article 10(2) of the Convention, which “requires the Court to determine whether [the interference] 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.”

Based on its case law, the Court acknowledged 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.” [para. 30] In the present case, the Court found that “a candidate for a position of a director of a public radio may be considered to belong to that category of official.” While taking into account the NGOs’ right to inform government officials about  improper conducts of civil servants, the Court distinguished their opinions or value judgments from factual allegations contained in the letter. According to the Court, “[t]he 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 fulfill and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10.” [para. 32] Applying to the case, the Court referred to the appellate court’s finding that the letter contained inaccurate statement of facts for which the NGOs failed to prove their truthfulness. It further agreed with the domestic courts that the NGOs were negligent for “simply pass[ing] on the information they received without making a reasonable effort to verify its accuracy.” [para. 34]

The Court concluded the domestic courts of Bosnia and Herzegovina had struck a fair balance between the competing interests of the NGOs and the government’s legitimate aim of protecting the candidate’s reputation. Accordingly, the Court’s majority opinion found no violation of the right to freedom of expression under Article 10 of the Convention.

Dissenting Opinions:

Justices Nicolaou, Tsotsoria, and Vehabovic delivered the Court’s joint dissenting opinion.

The dissenting justices were of the opinion that the defamation liability against the NGOs was “incompatible” with Article 10 of the Convention. According to them, liability under Section 6 of the Defamation Act requires the plaintiff to show that the damage to his or her reputation was caused by “. . . ascertaining or disseminating a falsehood in relation to that person . . .” Here, the justices held that the letter could not amount to dissemination because the NGOs’ letter was a “limited communication,” addressed in private and confidential, to government authorities and that they “reserved the right to contact the media if no action was taken by the authorities does not detract from this argument.” Moreover, the justices were of the opinion that some disputable information in the letter “could not by itself vitiate the propriety of the applicants’ communication with the authorities,” as the NGOs did not make definite or final assertion of facts.