The Constitutional Court of Bosnia and Herzegovina was in session, for the first time this year without judges from Republika Srpska. The judges decided on the request for the evaluation of the constitutionality of the legal provisions, which criminalize defamation in the Republika Srpska.
The Constitutional Court of Bosnia and Herzegovina decided that the criminalization of defamation is not unconstitutional, except in one case.
“Considering Articles 208a, 208b, 208v, 208g, 208d and 208đ, the Constitutional Court pointed out that the fact that defamation, after a long period, was again prescribed as a criminal offense is not in itself against the Constitution of BiH or the European Convention. However, the Constitutional Court the court considered it necessary to point out that, although it did not judge the aforementioned provisions to be unconstitutional, the competent authorities in the Republika Srpska should act with special care in the case of criminal prosecution for the offenses prescribed in these articles, and in particular take care to apply the disputed provisions in accordance with the standards established by the long-standing by the practice of the European and Constitutional Court, and emphasized that the competent authorities should, as far as possible, avoid the use of legal remedies that could deter citizens, and especially journalists, from expressing a critical opinion on issues of public interest due to fear of criminal and other sanction,” the court explained.
When it comes to 280a, a different decision was made, that is, that the mentioned article is not in accordance with the Constitution of Bosnia and Herzegovina.
“Regarding the assessment of the constitutionality of Article 280a, the Constitutional Court considered, among other things, that the scope of acts that can be considered punishable in accordance with Article 280a of the contested law (Injury of the reputation of the Republic of Srpska and its peoples) calls into question the proportionality of interference through criminal sanctions. In addition, the Constitutional Court noted that the criminal offense from the cited article, for which a prison sentence is prescribed, leaves the possibility of applying the measures prescribed by the Law on Criminal Procedure to ensure the presence of the accused person and the successful conduct of the criminal proceedings, i.e. the possibility of ordering the accused into custody. which additionally confirms the deterrent effect of Article 280a. The Constitutional Court concluded that Article 280a is not proportionate to the goals for which it was enacted and that such interference with freedom of expression is not ‘necessary in a democratic society,'” the explanation states.
Namely, Article 208a says:
(1) Whoever tells or conveys something untrue about another person, knowing that it is untruth, identifying that person to third parties in a clear way, and thus causing damage to the reputation and honor of that person, will be fined in the amount of 1,000 BAM up to 3,000 BAM.
(2) If the act referred to in paragraph 1 of this article was committed through the press, radio, television, computer network or other forms of communication, at a public meeting or in another way, as a result of which it became available to a large number of persons, it shall be punished by a fine of 2,000 BAM to 5,000 BAM.
(3) If what is presented or conveyed has led or could lead to serious consequences for the injured party, the perpetrator will be fined from 3,000 BAM to 6,000 BAM.
What we could also see on the website of the Constitutional Court of Bosnia and Herzegovina is the surprise that the Constitutional Court of Bosnia and Herzegovina held this announced planned session online due to the fact that some foreign judges could not attend the session in the building of the Constitutional Court of Bosnia and Herzegovina.
At the beginning of the session, it was also discussed in what conditions the sessions of the Constitutional Court of Bosnia and Herzegovina are held and several conclusions were reached, it was also said that a strategy will be adopted in the coming period according to which this institution will function.
Of course, the Constitutional Court of Bosnia and Herzegovina once again asked those responsible, that is, the Parliament of the Federation of BiH and the National Assembly of the Republika Srpska, to appoint the missing judges so that the Constitutional Court of Bosnia and Herzegovina could function as prescribed in the Constitution, and that means that the Constitutional Court of Bosnia and Herzegovina should have nine judges, and today’s session was held with six judges, three domestic and three foreign judges.
We know that the Constitutional Court of Bosnia and Herzegovina came to this situation when two judges retired, and then Zlatko Knežević took early retirement at the end of 2023.
However, the problem arose because the National Assembly of the Republika Srpska does not want to appoint new judges coming from this entity, and there is also a problem with judges from the Federation, because the Parliament of the Federation is blocked, that is, the commission that should appoint the missing judge from the Federation.
They reiterated once again from the Constitutional Court of Bosnia and Herzegovina that this institution functions, but with difficulties, and called on all those responsible to solve this problem, to appoint the missing judges so that in the coming period this largest instance in the state of Bosnia and Herzegovina could make decisions which are in accordance with the Constitution of Bosnia and Herzegovina.
