FOURTH SECTION

CASE OF MEDLIS ISLAMSKE ZAJEDNICE BRKO AND

OTHERS v. BOSNIA AND HERZEGOVINA
(Application no. 17224/11)

JUDGMENT

STRASBOURG
13 October 2015

This judgment will become final in the circumstances set out in Article 44 2 of the
Convention. It may be subject to editorial revision.

MEDLIS ISLAMSKE ZAJEDNICE BRKO AND OTHERS

v. BOSNIA AND HERZEGOVINA JUDGMENT

In the case of Medlis Islamske Zajednice Brko and others

v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as a
Chamber composed of:
Guido Raimondi, President,
Pivi Hirvel,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Krzysztof Wojtyczek,
Faris Vehabovi, judges,
and Franoise 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 Brko District
of Bosnia and Herzegovina (BD): the Brko Branch of the Islamic
Community of Bosnia and Herzegovina (Medlis Islamske zajednice Brko),
the Bosniac Cultural Society Preporod (Bonjaka zajednica kulture
Preporod), the Bosniac Charity Association Merhamet (Merhamet
Humanitarno udruenje graana Bonjaka Brko Distrikta) and the Council
of Bosniac Intellectuals (Vijee Kongresa Bonjakih intelektualaca Brko
Distrikta), on 21 January 2011.
2. The applicants were represented by Mr O. Mulahalilovi, a lawyer
practising in Brko. The Government of Bosnia and Herzegovina (the
Government) were represented by their Agent, Ms M. Miji.
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.

MEDLIS ISLAMSKE ZAJEDNICE BRKO AND OTHERS

v. BOSNIA AND HERZEGOVINA JUDGMENT

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.Ss 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 Brko 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 Brko,
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 radios 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 radios 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
Brko 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.

MEDLIS ISLAMSKE ZAJEDNICE BRKO AND OTHERS

v. BOSNIA AND HERZEGOVINA JUDGMENT

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 Brko 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.s
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 BDs 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.
1

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

MEDLIS ISLAMSKE ZAJEDNICE BRKO AND OTHERS

v. BOSNIA AND HERZEGOVINA JUDGMENT

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

MEDLIS ISLAMSKE ZAJEDNICE BRKO AND OTHERS

v. BOSNIA AND HERZEGOVINA JUDGMENT

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 persons 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 Courts 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
...

MEDLIS ISLAMSKE ZAJEDNICE BRKO AND OTHERS

v. BOSNIA AND HERZEGOVINA JUDGMENT

B. Defamation Act 2003 (Zakon o zatiti od klevete Brko 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 Brko
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) if the assertion or dissemination was reasonable.
...

MEDLIS ISLAMSKE ZAJEDNICE BRKO AND OTHERS

v. BOSNIA AND HERZEGOVINA JUDGMENT

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.

MEDLIS ISLAMSKE ZAJEDNICE BRKO AND OTHERS

v. BOSNIA AND HERZEGOVINA JUDGMENT

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.

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v. BOSNIA AND HERZEGOVINA JUDGMENT

2. The Courts 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 ralien 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).

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v. BOSNIA AND HERZEGOVINA JUDGMENT

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 Lenk 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

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v. BOSNIA AND HERZEGOVINA JUDGMENT

11

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 BDs 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 Courts 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.

Franoise Elens-Passos
Registrar

Guido Raimondi
President

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v. BOSNIA AND HERZEGOVINA JUDGMENT

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 Vehabovi is annexed to this judgment.

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

MEDLIS ISLAMSKE ZAJEDNICE BRKO AND OTHERS

v. BOSNIA AND HERZEGOVINA JUDGMENT SEPARATE OPINION

13

JOINT DISSENTING OPINION OF JUDGES NICOLAOU,

TSOTSORIA AND VEHABOVI
We regret that we are unable to subscribe to the view of the majority that
the Appellate Court judgment finding the applicants liable for defamation,
as upheld by the Constitutional Court, was compatible with Article 10 of the
Convention. We are of the opinion that it was not and that there has
therefore been a violation of the applicants right to hold opinions and to
receive and impart information and ideas under that Article.
Section 6 of the Defamation Act 2003 of BD defines defamation as
causing damage to the reputation of a person by ...ascertaining or
disseminating a falsehood in relation to that person.... It is, of course, for
the domestic courts to interpret legislation, but no question arises as to the
meaning and effect of the relevant provision in the present case. What is at
issue is, in effect, whether the undisputed facts of the case could
conceivably afford grounds for imputing any liability to the applicants.
As we understand those facts, they clearly do not. We note first that it
cannot be said that the applicants were, in the circumstances, responsible for
disseminating the letter complained of. They addressed it to the competent
authorities, that is to say the International Supervisor for BD, the President
of the Assembly of BD and the Governor of BD. It was a very limited
communication, which was both private and confidential, and was made to
persons who had a direct institutional interest in the matter and were thus
entitled to receive it. The letter was certainly not meant for wider
publication or, in the words of Section 6 of the Defamation Act 2003, for
dissemination. That the applicants reserved the right to contact the media if
no action was taken by the authorities does not detract from this argument;
whether such an eventuality would have materialised and, if so, in what
form or with what content one simply does not know. Lastly, it has not been
suggested that the applicants should be held accountable for the ultimate
dissemination of the letter, in which they were not shown to have been
involved in any way.
The letter in question concerned in essence the procedure for the
appointment of a director of the BD public radio. It contained views on
matters of public interest. It criticised the approach already taken by the
authorities and transmitted to them unofficial information received in
relation to candidate M.S., to the effect that M.S. was unsuitable for the
post. The gist of it all was that the authorities were duty-bound to direct
their attention to the said unofficial information and, if it was
substantiated, to act accordingly. It was clear that the applicants relied on
the authorities to inquire into the various allegations and to evaluate them.

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v. BOSNIA AND HERZEGOVINA JUDGMENT SEPARATE OPINION

The fact that some of the allegations to which that information referred
might have been shown, after inquiry, to be unfounded or inaccurate could
not by itself vitiate the propriety of the applicants communication with the
authorities. What is germane to the present purpose is that the applicants
themselves made no definite or final assertions as to the facts. In the words
of Section 6 of the Defamation Act 2003, there was nothing they did that
could fairly be regarded as tantamount to ascertaining a falsehood.
We would further emphasise that in this type of situation the
communication should be seen in context. Account should be taken of the
need to protect the reputation of the individual but also of the need to
maintain confidence in public administration by encouraging the
involvement of citizens and addressing their concerns. People are entitled,
in the discharge of their civic duties, to bring relevant information to the
attention of the authorities and may, indeed, do so in strong terms in an
attempt to persuade the authorities to scrutinise such information so as to
ensure sound administration in public affairs. A person may sometimes
overstep the mark and, where that happens, a proportionality exercise may
be necessary. In the present case, the highest domestic courts approached
the case as if the applicants had actually gone farther than they should have
done. Even if that were the case the courts then failed, in our view, to carry
out a meaningful examination of the relevant competing interests bearing on
the proportionality of State interference with the right to freedom of
expression under Article 10.