TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): The appellate court of Brsko has in its file written evidence that Mrs. Zivkovic did not apply for the position
AP1 (Applicant): of the director, and the disputable judgment states that she did apply for the position of the director.
AP1 (Applicant): In its observations to the agent of Bosnia and Herzegovina, the appellate court of Brsko stated that it also assessed the disputable letter of the applicants from the aspect of the right of Mrs.
AP1 (Applicant): Zivkovic to apply for the post for the director of the radio Brsko.
AP1 (Applicant): The Brsko district mayor, in his letter from June 13, 2016, did not state that he had annulled the vacancy notice.
AP1 (Applicant): A letter of the government from September 28, 2005 also did not state that the vacancy notice had been annulled.
AP1 (Applicant): The applicants opposed the court to examine evidence ex officio during the proceeding before the appellate court of Brsko.
AP1 (Applicant): The applicants are of the view that an unbiased tribunal should only assess proposed and examined evidence.
AP1 (Applicant): The appellate court of Brsko examined evidence ex officio.
AP1 (Applicant): If the appellate court of Brsko examines evidence ex officio, then why hasn't the appellate court of Brsko acquire data on whether the vacancy notice was annulled?
AP1 (Applicant): It seems as if the appellate court ex officio selectively examines and acquires evidence which is in favor of Mrs. Zivkovic and does not
AP1 (Applicant): acquire evidence ex officio which would be to her detriment.
AP1 (Applicant): In the explanation of the judgment, the court simply neglects written evidence which is detrimental to Mrs. Zivkovic.
AP1 (Applicant): The applicants believe that in this way, the appellate court of Brsko displayed biasness in passing of the judgment and arbitrarily assessed the evidence.
AP1 (Applicant): We would like to point out to the court the court practice in judgments Ravensburg versus Sweden from March 23, 1994, Bullut versus Austria from February 22, 1996, and Tejedor-Gracia versus Spain from December 16, 1997.
AP1 (Applicant): A court can review the assessment of evidence only if decisions passed by domestic courts were arbitrary or obviously unreasonable.
AP1 (Applicant): Therefore, we propose that the violation of the right to fair trial is established.
AP1 (Applicant): Part three, violation of the right to freedom of expression under Article 10 of European Convention.
AP1 (Applicant): In democratic societies, a court cannot limit the possibility of addressing by a citizen or access to institutions through private correspondence with the goal to point at social problems and irregularities in the work of certain bodies as necessary need in a democratic society.
AP1 (Applicant): Otherwise, this would result in discouragement of citizens to solve their problems in the social community.
AP1 (Applicant): There is no doubt that the state interfered with the freedom of expression by the disputed decision.
AP1 (Applicant): The applicants believe that interference with the right to freedom of expression was not stipulated by laws.
AP1 (Applicant): This provision of the provision of the Article 6 of the Defamation Act is not precise.
AP1 (Applicant): The set provision does not stipulate that one who addressed state bodies and reported irregularities cannot be held responsible for defamation.
AP1 (Applicant): The applicants could not reasonably expect to be punished for alleged defamation because they reported irregularities in someone's work.
AP1 (Applicant): The provision of the Article 2 of the Defamation Act of the Brsko District protects the right to freedom of expression, which can be offensive, embittering, or disturbing.
AP1 (Applicant): Because of this, the applicants could not have reasonably expected to be punished.
AP1 (Applicant): See Reckoning versus Hungary, application number AP35390-94 from May 20, 1999.
AP1 (Applicant): The applicants did not cause damage because they did not make the letter public.
AP1 (Applicant): The applicants reasonably expected that the mayor will deliver the disputable letter to the police in order to possibly check whether the information contained in the letter is correct to establish whether, for example, it is necessary to investigate if Mrs. Zivkovic had committed
AP1 (Applicant): an offense or, for example, a criminal act of provoking ethnic, racial, or religious hatred or intolerance.
AP1 (Applicant): Verification of claims on whether an offense or criminal act has been committed is under the jurisdiction of the police or competent prosecutor's office.
AP1 (Applicant): The applicants had neither this authority nor capacity.
AP1 (Applicant): The applicants are neither the police nor a prosecutor to be able to check claims on whether an offense or a criminal act has been committed.
AP1 (Applicant): They are not supposed to carry out investigations.
AP1 (Applicant): After all, the applicants noted at the end of the disputable letter that, quote, should there be no reaction by your side, end of quote, then they expect competent institutions to verify the claims.
AP1 (Applicant): Instead of having the claims from the letter checked, for example, by the police, the letter was delivered to Mrs. Zivkovic, most probably
AP1 (Applicant): by the mayor's office, so that she can file the lawsuit against the applicants.
AP1 (Applicant): Interference of the state by the said judgment is not proportional with the legitimate cause.
AP1 (Applicant): In democratic societies, the freedom of expression is always given an advantage before possible protection of honor and reputation of a natural person.
AP1 (Applicant): We believe that proportionality between the right to the freedom of expression of the applicants and the right of Mrs. Zivkovic to protection of honor
AP1 (Applicant): and reputation was infringed.
AP1 (Applicant): See Castles versus Spain judgment number AP-111798-85 from March 24, 1992, and Dalban versus Romania judgment number AP-128114-95 from September 28, 1999.
AP1 (Applicant): The applicants find that this interference was not necessary in a democratic society.
AP1 (Applicant): The applicants are of the view that they informed persons in the authorities in public interest by the disputable letter.
AP1 (Applicant): It was not proven, and the applicants did not deliver the disputable letter to media.
AP1 (Applicant): Does this mean that in matters of public interest, one should be silent out of fear that the information might leak to public?
AP1 (Applicant): According to the applicant's opinion, one should not be silent on matters of public interest out of fear that the information might leak to public.
AP1 (Applicant): We would especially like to point out that there is no law in the Brsko district that would protect whistleblowers who report on corruption or irregularities.
AP1 (Applicant): The applicants believe that checking of claims from the letter would have been in the public interest.
AP1 (Applicant): The letter was private, sent to the mayor, the president of the assembly, and the supervisor.
AP1 (Applicant): The case Lesnik versus Slovakia, application number 35640-97, is not compatible with this case.
AP1 (Applicant): In Lesnik's case, he admitted that he gave the information to a journalist.
AP1 (Applicant): In this case, the applicants did not give the letter to media.
AP1 (Applicant): In this case, Mrs. Zivkovic did not
AP1 (Applicant): suffer any damage because of the letter since she did not apply for the position of the director.
AP1 (Applicant): No investigation on claims against Mrs. Zivkovic
AP1 (Applicant): has been carried out in the context of establishing whether she committed an offense or criminal act.
AP1 (Applicant): Namely, the claims from the letter have not been checked by the police or prosecutor's office.
AP1 (Applicant): The investigation in Lesnik's case has been conducted and suspended.
AP1 (Applicant): This case is compatible with the case Syrik versus Ukraine, number AP-6428-07 from March 12, 2011, and Zakharov versus Russia, application number 47143-06 from December 4, 2015.
AP1 (Applicant): In case this application is rejected, then how will this court render its judgment if, for example, the following case appears before the court?
AP1 (Applicant): A conscientious citizen reports on a corruption case to a mayor as the head of the executive authorities.
AP1 (Applicant): The same report is sent to a president of the assembly.
AP1 (Applicant): The mayor fails to notify a chief of the police on the corruption report.
AP1 (Applicant): The assembly president fails to establish an ad hoc commission to investigate the corruption.
AP1 (Applicant): No investigation is carried out after the corruption is reported.
AP1 (Applicant): The report leaks from their offices to media.
AP1 (Applicant): The reported person sues the conscientious citizen for defamation.
AP1 (Applicant): Will this court protect the person reported for corruption or the conscientious citizen?
AP1 (Applicant): Will this court decide, as the small chamber did in this case, or will it establish that the Article 10 of the European Convention was violated?
AP1 (Applicant): If this application is adopted, then citizens will be encouraged to address bodies of authorities with their reports on irregularities and corruption, and they will be certain that they will not be punished because of it.
AP1 (Applicant): If the application is not adopted, then citizens will be discouraged to report on corruption and irregularities out of fear that they will be punished.
AP1 (Applicant): A public person is a subject to criticism and expression which can be embittering or disturbing is allowed.
AP1 (Applicant): This is the practice of the European Court in case Hendryside versus United Kingdom from 1976.
AP1 (Applicant): We propose that the violation of the right to freedom of expression is established.
AP1 (Applicant): Part four, violation of right to effective legal remedy under Article 13 of the European Convention.
AP1 (Applicant): The right to effective legal remedy is one of key provisions of the European Convention.
AP1 (Applicant): By facilitating this legal remedy, the volume of work of the European Court in Strasbourg will be reduced.
AP1 (Applicant): The recommendation of the Committee of Ministers from 2004-6 on improvement of domestic legal remedies, the introduction of an effective domestic legal remedy represent a continuous effort of the Council of Europe.
AP1 (Applicant): This is the declarations from Interlaken, Izmir, and Brighton.
AP1 (Applicant): The Brighton declaration expressed determination of member states, among other things, to consider the introduction of new domestic legal remedies if necessary.
AP1 (Applicant): The application and petition explained the way in which the appellate court of Brcko merged the role of the first, second, and third instance courts in the contested judgment.
AP1 (Applicant): Therefore, the applicants had no right to an effective legal remedy.
AP1 (Applicant): It has been already explained that the appeal before the Constitutional Court of Bosnia and Herzegovina is not an effective legal remedy, and that the Constitutional Court has no authority to examine whether the facts have been properly established and whether procedural and material laws have been properly applied.
AP1 (Applicant): Therefore, the applicants had no right to an effective legal remedy because they did not have the right to an appeal and revision following the disputable judgment of the appellate court of Brcko.
AP1 (Applicant): Nobody has examined the merits of the judgment of the appellate court of Brcko.
AP1 (Applicant): The applicants had no right to an effective legal remedy because this effective legal remedy, as according to domestic legislation, was neither available nor sufficient to them.
AP1 (Applicant): It was already explained in the introduction in which way judges propose laws by which they judge later.
AP1 (Applicant): Practically, judges create laws by which cases are judged.
AP1 (Applicant): The provision of the Article 14, item H of the law on the Judicial Commission of Brcko District of B&H reads, quote, the commission performs the following duties.
AP1 (Applicant): H, prepares and delivers to the assembly the laws related to the organization and work of the appellate and basic court, prosecutor's office of the Brcko District, public attorney's office, and also related to regulation of work of lawyers and notaries in the district, end of quote.
AP1 (Applicant): It seems that judges created a law which excludes the right to an effective legal remedy in the above described way.
AP1 (Applicant): Therefore, there is no division between judicial and executive authorities in the Brcko District and as in other democratic societies.
AP1 (Applicant): The fact the appellate court of Brcko in a certain way holds competencies of the constitutional court because it examines and assesses if all legal acts of the Brcko District are in line with the statute and constitution is yet another question.
AP1 (Applicant): With regards to the right to an effective legal remedy, please see the practice McFarland versus Ireland, application number 3133 slash 06 from September 10, 2014.
AP1 (Applicant): NSS versus Belgium and Greece, application number 30696 slash 09, judgment from January 21, 2011.
AP1 (Applicant): And Holford versus United Kingdom, application number 20605 slash 92.
AP1 (Applicant): Does this mean that if no effective legal remedy is provided in domestic laws and before domestic courts, then every case from the Brcko District should end up before this court?
AP1 (Applicant): As according to domestic laws, no court was in position to examine arbitrary findings in the judgment of the appellate court of Brcko as it was previously explained.
AP1 (Applicant): There is no guarantee of rights from the European Convention if there is no Supreme Court in the state.
AP1 (Applicant): Such court would enable use of effective legal remedies, ones that are meritorious, sufficient, and available in domestic legislation.
AP1 (Applicant): In this way, the truth in court decision would certainly be reached.
AP1 (Applicant): We propose that the violation of the right to an effective legal remedy is established.
AP1 (Applicant): We propose that the court establishes violation of the rights under Articles 6, 10, and 13 of the European Convention.
András Sajó (JudgeP): Thank you, Madam Murselović.
András Sajó (JudgeP): I would like to call the representative of the government, Mrs. Mijić, please.
GR1 (Government): Honorable judges, applicants in the present case are for Bosniak non-governmental organizations.
GR1 (Government): They argue that their right to freedom of expression was violated as a result of judicial decisions in civil defamation proceedings, which had been brought against them by Ms. Ms.
GR1 (Government): At a material time, Ms. Ms. was a public servant,
GR1 (Government): the entertainment editor at the Brcko District Public Radio.
GR1 (Government): In May 2003, the applicants wrote a letter to the international supervisor, to the president of the assembly, and to the governor of the Brcko District concerning the appointment of a director of the Brcko District Public Radio station.
GR1 (Government): In this letter, which was published in the media shortly after being sent, the applicants made false factual allegations regarding Ms. Ms.,
GR1 (Government): a candidate from the Serb people for the position of a director, which labeled her as a nationalist.
GR1 (Government): In order to protect her reputation, which falls within the ambit of the right to respect for private life, Ms. Ms.
GR1 (Government): filed a lawsuit claiming non-concurrent damage for mental anguish she sustained as a result of the harm to her reputation.
GR1 (Government): In the opium letter, the applicants, among other things, alleged that in an interview published in Neen Weekly magazine discussing the destruction of mosques in Brcko, Ms. Ms. said that Muslims were not
GR1 (Government): people, that they did not possess culture, and that accordingly, destroying mosques could not be seen as a destruction of cultural monuments.
GR1 (Government): They also alleged that Ms. Ms. on radio's premises
GR1 (Government): made a point of removing from the wall and tore to pieces the calendar with a schedule for religious services during the month Ramadan, that on the radio's premises, she covered the coat of arms of Bosnia-Herzegovina with coat of arms of Republic of Srpska, and that as the editor of the entertainment program, she banned broadcasting of Sevdalinga song, arguing that that type of song had no cultural or musical value.
GR1 (Government): In a post-conflict and multicultural society as that of Bosnia-Herzegovina, such allegations about a public servant of a different ethnic background carry a particular weight and seriousness.
GR1 (Government): These false allegations caused Ms. Ms. mental anguish,
GR1 (Government): for which she was treated by a psychiatrist, as established based on medical documentation in the Brcko District Appellate Court judgment.
GR1 (Government): In the proceedings brought by Ms. Ms.,
GR1 (Government): the appellate court distinguished, in accordance with the case law and the principles of the European Court of Human Rights, between value judgments and statements of facts that the applicants made in the impugned letter.
GR1 (Government): Relying on the statements of witnesses and other evidence, the appellate court even found that the wording of the letter evidently did not convey what the witness had said to one of the applicants about Ms. Ms. and her conduct.
GR1 (Government): In these proceedings, the applicants had a full and unimpeded opportunity to prove factual allegations that they had conveyed to a third person.
GR1 (Government): However, they failed in it.
GR1 (Government): In the proceeding before the appellate court, the applicants argued that they could not be responsible for defamation, as they had not sent the letter to the media, nor had they issued a press release, but rather they addressed the letter to specific institutions only.
GR1 (Government): However, Article VI of the Defamation Act clearly provides that any person who 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.
GR1 (Government): Accordingly, to entail liability, defamation need not be made by public announcement or through media, as the appellate court clearly observed in its judgment.
GR1 (Government): In accordance with the Defamation Act, the appellate court found that by sending the letter to the aforementioned institutions, the applicant harmed the honor and reputation of Ms.
GR1 (Government): Ms. and ordered them to retract the impugned letter
GR1 (Government): or to pay jointly and severally 2,500 Bosnian marks to the plaintiff in respect of non-peculiar damage, as well as to send the judgment for publication at their own expense.
GR1 (Government): Thereafter, the applicants lodged an appeal with the Constitutional Court of Bosnia-Herzegovina.
GR1 (Government): The Constitutional Court of Bosnia-Herzegovina found that the interference with the freedom of expression in this case was in accordance with the law, namely the Defamation Act, and that the interference pursued a legitimate aim of the protection of the reputation or rights of others.
GR1 (Government): The Constitutional Court agreed with the appellate court that the impugned letter contained factual allegations that had to be proved, which the applicants failed to do so.
GR1 (Government): Specifically, they did not make a reasonable effort to verify the impugned statements beforehand.
GR1 (Government): In its decision, the Constitutional Court underlined that public interest, which allows the raising of an issue of a potentially unlawful conduct of public servants, could not be defended by undisputedly false facts which constitute an attack on their reputation.
GR1 (Government): The Constitutional Court, guided by the case law and the principles of the European Court of Human Rights, examined in detail all the aspects of this case and concluded that the applicant's right to freedom of expression had not been violated in the present case.
GR1 (Government): This court, sitting as a chamber, also found that there had been no violation of Article 10 of the Convention.
GR1 (Government): In its judgment of 13 of October 2015, this court held, in the overall circumstances of the instant case, the court finds the solution of the domestic court strike a fair balance between the competing interests of the climate and those of the applicants.
GR1 (Government): And the reasons given to justify their decisions were relevant and sufficient and met a pressing social need.
GR1 (Government): 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 principle laid down by the court's case law.
GR1 (Government): We consider the decisions of domestic courts in this case to be a school example of proper application of all principles laid down by the case law of the European Court of Human Rights in cases where a fair balance needs to be struck between competing rights.
GR1 (Government): The essence of this case lies in the fact that the applicants acted with utter negligence when reporting the alleged improper conduct of Ms.
GR1 (Government): Ms. Not only that they failed to make a reasonable effort
GR1 (Government): to verify the information they had received and then transmitted it in the impugned letter, but they also made factual allegations that had not even been conveyed to them.
GR1 (Government): Specifically, based on direct evidence given by two witnesses, the domestic courts found that the information about Ms. Ms.
GR1 (Government): conveyed to the applicants by these two persons were clearly inconsistent with what was written in the letter.
GR1 (Government): We recall that the freedom of expression is not absolute.
GR1 (Government): In accordance with paragraph 2 of Article 10 of the Convention, freedom of expression includes duties and responsibilities and may be subject to such formalities, conditions, restrictions, or penalties as are prescribed by law and are necessary in democratic society in the interest of, among other things, the protection of the reputation or rights of others.
GR1 (Government): Obviously, the applicants in the present case have completely disregarded these duties and responsibilities related to the exercise of the freedom of expression, as well as the provisions of the Deformation Act, which are sufficiently clear and precise and the applicants could have reasonably anticipated their application in the given circumstances.
GR1 (Government): Also, when it comes to duties and responsibilities related to freedom of expression, noteworthy is the fact that the applicants in the present case are four reputable Bosniak non-governmental organizations whose members are intellectuals, respectable citizens of Brcko district.
GR1 (Government): It would have been quite reasonable to expect from these organizations to at least verify the facts alleged in the impugned letter before passing them on to the highest authorities of the Brcko district.
GR1 (Government): However, not only that the applicants failed to do that, but they even failed to convey authentically the information they had received.
GR1 (Government): At least a minimum verification of the truthfulness of grave accusations whose content is in connection with religious and ethnic background of another person, public servant of a different ethnic and religious background than that of the applicants, is particularly important in an after war multi-ethnic society, such as the Society of Bosnia and Herzegovina, composed of members of the former warring parties, which today are three constituent peoples.
GR1 (Government): The reason for this lie in the fact that the ultimate public interest in Bosnia-Herzegovina is to maintain peace and build mutual confidence.