Media Law in BiH Eng

Edited by Mehmed HALILOVI and Amer DIHANA
MEDIA LAW
IN BOSNIA AND HERZEGOVINA
Sarajevo, 2012
Title: MEDIA LAW IN BOSNIA AND HERZEGOVINA

Publisher: INTERNEWS IN BOSNIA AND HERZEGOVINA, Sarajevo, Hamdije Kreevljakovia 50,
71000 Sarajevo, Bosnia and Herzegovina, www.internews.ba
For publisher: Sue Folger
Editors: Mehmed HALILOVI and Amer DIHANA
Authors: Mladen SRDI, Sevima SALI-TERZI, Mirjana NADADIN-DEFTERDAREVI, Libby
MORGAN, Helena MANDI, Vanja IBRAHIMBEGOVI-TIHAK, ejla JUSUFOVI, Mehmed
HALILOVI and Amer DIHANA.
Recension: Monroe PRICE and Zdravko GREBO
Technical corrections: Kristina ENDI and Meliha BAJROVI
Translation: Kristina ENDI
Proofreading: Florentina DRAGULESCU
Design: Dalida KARI-HADIAHMETOVI
CIP - Katalogizacija u publikaciji

Nacionalna i univerzitetska biblioteka
Bosne i Hercegovine, Sarajevo
34:659.3](497.6)
MEDIA law in Bosnia and Herzegovina
[Elektronski izvor] / [authors Mladen Srdi ...
[et al.] ; edited by Mehmed Halilovi and Amer
Dihana ; translation Kristina endi]. - Sarajevo
: Internews Network, 2012. - 1 elektronski zapis :
tekst, slike, animacije. - (Elektronski tekstualni
podaci)
Tekst s nasl. ekrana. Nain dostupa (URL): http://www.internews.ba
ISBN 978-9958-1995-1-6
1. Srdi, Mladen
COBISS.BH-ID 20001030
This book was made with a great help of American people through the US
Agency for International Development (USAID) within the project of supporting
independent media in B-H, implemented by Internews in Bosnia and Herzegovina.
Perspectives and opinions expressed in the book are exclusively those of the
authors and they do not necessarily express the opinion of Internews, USAID,
or the Government of the United States of America.
Authors of texts used different linguistic norms used in Bosnia and Herzegovina. These linguistic differences were kept in final versions of the texts.
FOR E WOR D
Media Law in Bosnia and Herzegovina examines the legal environment the
legislative framework, institutions, laws and practices in which news media
operate in Bosnia and Herzegovina (B-H). It is a reference guide for B-H media
practitioners, lawyers, universities, and governmental and non-governmental
institutions all stakeholders who work together in a democratic society to
serve the publics best interests. We hope that the Primer will raise interest and
improve understanding of media laws among all target groups. We also anticipate that media law courses will eventually be considered for inclusion into
regular university curricula.
This compendium, which we call the B-H Primer, is the first of its kind in Bosnia
and Herzegovina. It is part of Internews USAID-funded five-year project to support and strengthen independent media and the media environment in B-H.
The need for such a publication in B-H is great; the complexity and specificities
of B-H institutions, norms and legal practices, juxtaposed with European standards and practices, make understanding basic media laws and concepts far
from easy.
The Primer is not encyclopedic. Based on a diagnostic survey and subsequent
research, it has a defined range of topics and legislation that were considered
to be important to address to better understand media law practice in B-H. In
this document, we illustrate, explain, compare and provide recommendations.
Although, by international standards, B-H media laws are deemed quite good,
there is still room for improving both the laws and their implementation.
With assistance from the University of Pennsylvanias Annenberg School for
Communication, the Primer is a product of exhaustive research and writing by
a team of experts from different backgrounds, practicing in the judiciary field,
legal practice, academia, regulatory institutions, media research, and the media
industry. We consider this publication a critical step towards improving the legal and self-regulatory framework and institutions in Bosnia and Herzegovina,
particularly in light of the countrys aspirations to European Union membership.

It should be considered a working document its online publication will most
certainly go through regular updates and changes, and we invite you, our readers, to comment and send us suggestions.
I want to express my deep appreciation to Internews colleagues Mehmed
Halilovi and Amer Dihana, who not only authored and edited many sections
of the Primer, but were the true drivers of this effort. I also want to thank our
key outside contributors for their insight, enthusiasm and prolific writing - Mladen Srdi and Sevima Sali-Terzi - as well as Helena Mandi, Mirjana NadadinDefterdarevi, Libby Morgan, Vanja Ibrahimbegovi-Tihak and ejla Jusufovi.
Gratitude goes to Katharine Larsen of Levine Sullivan Koch & Schulz, LLP for her
valuable comments and suggestions, and to Monroe Price and Zdravko Grebo
for their review. Many thanks also go to Kristina endi for translating this voluminous document.
Sue Folger
CO N T E N T
FOREWORD .................................................................................................................................................... 5
REVIEWS ........................................................................................................................................................ 13
NEED FOR MEDIA LAW IN BOSNIA AND HERZEGOVINA .............................................................. 15
WHY WE NEED A PRIMER OF MEDIA LAW ......................................................................................... 17
INTRODUCTION ......................................................................................................................................... 19
CHAPTER 1: A LEGAL ENABLING ENVIRONMENT FOR NEWS MEDIA ACTIVITY .............. 27
GENERAL CONDITIONS FOR THE ACTIVITIES OF FREE MEDIA ................................................... 29
PRECONDITIONS FOR A LEGAL ENABLING ENVIRONMENT ........................................................ 29
FUNDAMENTALS OF FREE MEDIA AND JOURNALISM ................................................................... 31
CHAPTER 2: FREEDOM OF EXPRESSION NORMATIVE FRAMEWORK ................................ 33
CONSTITUTIONAL AND LEGAL FRAMEWORK ENSURING FREEDOM OF EXPRESSION ....... 35
LEGISLATIVE ACTIVITIES OF INTERNATIONAL COMMUNITY ...................................................... 37
INTERNATIONAL CONVENTIONS AND AGREEMENTS IN THE LEGAL SYSTEM OF B-H ........ 41
THE MOST IMPORTANT INTERNATIONAL SOURCES ...................................................................... 42
ROLE OF EUROPEAN COURT OF HUMAN RIGHTS IN THE APPLICATION OF CONVENTION .... 44
DECLARATIONS, RESOLUTIONS AND RECOMMENDATIONS OF THE COUNCIL OF EUROPE ...... 45
RESPONSIBILITY OF A STATE ACCORDING TO ARTICLE 10 ........................................................... 47
RELEVANCE OF ARTICLE 10 OF THE CONVENTION FOR ACTIVITIES OF THE MEDIA ............ 49

Right to privacy ....................................................................................................................... 49

Hate speech ............................................................................................................................. 50

Freedom of the press ............................................................................................................ 51
CHAPTER 3: FREEDOM OF EXPRESSION IN COURT PRACTICE ................................................ 53
MAIN STANDARDS OF THE PRACTICE OF EUROPEAN COURT ................................................... 55
FACTS AND OPINIONS .............................................................................................................................. 55
RIGHT TO PROTECTION OF REPUTATION AND RESPONSIBLE JOURNALISM ......................... 57
PROPORTIONAL DAMAGE....................................................................................................................... 57
PROTECTION OF CONFIDENTIAL SOURCES ...................................................................................... 59
EUROPEAN CONVENTION IN THE PRACTICE OF THE CONSTITUTIONAL COURT OF B-H ......... 63
GENERAL PRINCIPLES OF THE PROTECTION OF FREEDOM OF EXPRESSION APPLIED BY
THE CONSTITUTIONAL COURT OF B-H .............................................................................................. 64
MAIN DECISIONS OF THE CONSTITUTIONAL COURT .................................................................... 67

Satire and value judgments ................................................................................................ 67

Balance between freedom of media and right to reputation ................................. 69

Proving that damage occurred .......................................................................................... 70

Discretion of the Court when deciding on damage ................................................... 74

Determining the amount of non-pecuniary damage ................................................ 78

Right to fair trial and privacy .............................................................................................. 80
EXPRESSIONS RELATED TO PUBLIC INTEREST MATTERS ............................................................... 84
SUPERVISION OVER PUBLIC OFFICIALS .............................................................................................. 84
LIMITS OF ALLOWED CRITICISM ............................................................................................................ 86
PRACTICE OF COURTS IN BOSNIA AND HERZEGOVINA ................................................................ 88

Responsibility of politicians and public officials .......................................................... 89

Making distinction between value judgments and facts ......................................... 90

Principle of proportionality ................................................................................................ 91
OFFENSIVE, DISTURBING AND SHOCKING INFORMATION .......................................................... 92
STATUS OF LEGAL ENTITIES ................................................................................................................... 94
LEGAL STANDARDS REGARDING THE RELATION BETWEEN PUBLIC INTEREST AND THE
TREATMENT OF PUBLIC FIGURES AND POLITICIANS...................................................................... 96
CHAPTER 4: RIGHT TO INFORMATION .............................................................................................. 99
NORMATIVE FRAMEWORK OF THE RIGHT TO INFORMATION IN BOSNIA AND HERZEGOVINA .. 101
CONSTITUTIONAL PROVISIONS AS DETERMINING FACTORS ................................................... 102
RIGHT TO INFORMATION IN REPUBLIKA SRPSKA AND IN THE FEDERATION OF B-H ......... 104
SIMILARITIES AND DIFFERENCES AMONG CANTONAL LAWS .................................................. 105
RIGHTS, LIMITATIONS AND SANCTIONS .......................................................................................... 108
SHORTCOMINGS OF CANTONAL LAWS ..................................................................................... 110
RATIONALIZING AND ABANDONING NORMATIVE AUTHORIZATIONS ................................. 110
THE FREEDOM OF ACCESS TO INFORMATION ACT ...................................................................... 112
NO MORE NO LESS RIGHTS FOR JOURNALISTS ............................................................................. 112
OPENNESS, DEMOCRACY AND CORRUPTION ............................................................................... 113
SECRET DOCUMENTS ARE NOT EXEMPTED .................................................................................... 114
THREE TYPES OF POSSIBLE EXEMPTIONS ........................................................................................ 115
OTHER LAWS ARE NOT IN ACCORDANCE WITH FOAIA ............................................................... 116
THE LAW ON PROTECTION OF SECRET DATA EXCLUDES FOAIA .............................................. 117
EXAMPLES OF LAWS WITHOUT COMPLIANCE ............................................................................... 118
FOAIA EXCLUDES AUTOMATISM ........................................................................................................ 120
SOME SHORTCOMINGS OF FOAIA AND EXPERIENCES IN ITS APPLICATION........................ 122
ONLY STATE LAW HAS SANCTIONS .................................................................................................... 123
POLITICAL BOYCOTT OF THE MEDIA CONTRARY TO LAWS ....................................................... 124
CHAPTER 5: DEFAMATION AND MASS MEDIA ............................................................................ 127
LAWS ON PROTECTION AGAINST DEFAMATION ........................................................................... 129
DECRIMINALIZATION OF DEFAMATION AND INSULT IN B-H ..................................................... 130
REASONS FOR PASSING THE LAW ON PROTECTION AGAINST DEFAMATION ..................... 131
THE START OF THE APPLICATION OF LAWS ON PROTECTION AGAINST DEFAMATION IN B-H .... 134
IMPORTANT PRINCIPLES OF EUROPEAN COURT IN THE LAWS OF BOSNIA AND HERZEGOVINA ... 136
BASIC CHARACTERISTICS OF LAWS IN B-H ..................................................................................... 137
LINGUISTIC AND TERMINOLOGICAL DIFFERENCES AMONG LAWS ....................................... 139
DEFAMATION IN COURT PRACTICE ................................................................................................... 141
CONCEPT OF DEFAMATION ................................................................................................................. 141
DIFFERENCE BETWEEN FACTS AND VALUE JUDGMENT ............................................................ 142

DISTINCTION IN THE PRACTICE OF DOMESTIC COURTS............................................................ 144
EXAGGERATION AND PROVOCATION .............................................................................................. 147
NOT EVERY VALUE JUDGMENT IS PROTECTED .............................................................................. 148
IDENTIFYING DEFAMED PERSONS ..................................................................................................... 149
IDENTIFYING DEFAMED GROUP ......................................................................................................... 151
TYPE OF DAMAGE AND COMPENSATION ...................................................................................... 152
AMOUNT OF COMPENSATION............................................................................................................. 155
LIABILITY FOR DEFAMATION ............................................................................................................... 159
WHO IS THE AUTHOR OF AN INTERVIEW? ....................................................................................... 160
WHEN JOURNALISTS DISTANCE THEMSELVES FROM INTERLOCUTORS ................................161
DISSEMINATION OF EXPRESSIONS .................................................................................................... 163
EXEMPTIONS FROM LIABILITY ............................................................................................................ 166
PUBLIC INTEREST AND ACTING WITH BONA FIDE ........................................................................ 168
VERIFICATION OF FACTS ....................................................................................................................... 169
REPORTING ABOUT ONGOING COUR PROCEEDINGS ................................................................. 172
SATIRICAL EXPRESSIONS ...................................................................................................................... 175
TEMPORARY MEASURES........................................................................................................................ 177
URGENCY OF ACTION IN PROCEEEDINGS RELATED TO DEFAMATION ................................. 178
DIMINISHING DAMAGE ......................................................................................................................... 179
PUBLISHING THE JUDGMENT .............................................................................................................. 180
PUBLISHING A CORRECTION ............................................................................................................... 181
LIABILITY FOR INSULT ............................................................................................................................ 182
INSULT WITH A NATIONAL LABEL ...................................................................................................... 184
BASIC CONCLUSIONS ABOUT THE TREATMENT OF DEFAMATION BEFORE COURTS IN B-H ..... 187
RECOMMENDATIONS TO JOURNALISTS AND EDITORS............................................................... 187
CHAPTER 6: MEDIA AND JUDICIAL SYSTEM OF B-H ................................................................ 189
CASES INVOLVING MEDIA IN B-H: MECHANISMS OF PROTECTION AND PROCEDURE .... 191
CASES RELATED TO THE LAW ON PROTECTION AGAINST DEFAMATION............................................ 191
FILING LAWSUITS AND APPEALS AGAINST DECISIONS OF FIRST INSTANCE ....................... 193
DEADLINES FOR ASSERTING DEFAMATION CLAIM ..................................................................... 193
USING REVISION AS AN EXCEPTIONAL LEGAL REMEDY ............................................................ 194
SUBMITTING APPEAL TO THE CONSTITUTIONAL COURT OF BOSNIA AND HERZEGOVINA ..... 196
APPEAL TO THE EUROPEAN COURT OF HUMAN RIGHTS .......................................................... 196
MEDIA DISPUTES RELATED TO THE APPLICATION OF THE COMMUNICATION LAW ........ 197
BURDEN OF PROOF IN LITIGATORY PROCEEDINGS .................................................................... 200
WHEN DEFENDANTS CARRY THE BURDEN OF PROOF ............................................................... 201
ABSOLUTE TRUTH SHOULD NOT BE PROVEN ................................................................................ 202
FREEDOM OF EXPRESSION AND THE PROTECTION OF AUTHORITY AND IMPARTIALITY
OF JUDICATURE ....................................................................................................................................... 205
COURTS ENSURE A LEGAL STATE ...................................................................................................... 205
PRESSURING LEGISLATURE IS NOT ALLOWED .............................................................................. 207
LIMITATIONS OF FREEDOM OF EXPRESSION PROTECTING THE FUNCTION OF

JUDICATURE IN A SOCIETY .................................................................................................................. 208

The role of lawyers ............................................................................................................... 208

Limitations of acceptable criticism ................................................................................ 209

Judges and the right to freedom of expression ........................................................ 210

Public debates and comments on court decisions .................................................. 212
RECOMMENDATIONS FOR REPORTING ON COURT PROCEEDINGS ....................................... 212
Chapter 7: MEDIA AND PRIVACY ..................................................................................................... 215
PROTECTION OF PRIVACY ..................................................................................................................... 217
DIFFERENCE BETWEEN PRIVATE AND PUBLIC SPHERE .............................................................. 219
PROTECTION OF PRIVACY IN B-H ....................................................................................................... 221
PRIVACY OF CITIZENS IN DAILY NEWSPAPERS IN B-H ................................................................ 223
Chapter 8: LIMITATIONS OF FREEDOM OF MEDIA AND PROTECTION OF
NATIONAL SECURITY ........................................................................................................................... 225
INTERNATIONAL STANDARDS RELATED TO FREEDOM OF EXPRESSION, ACCESS TO
INFORMATION AND THE PROTECTION OF NATIONAL SECURITY........................................... 227
ACHIEVING FAIR BALANCE .................................................................................................................. 228
JOHANNESBURG PRINCIPLES ............................................................................................................. 230
INTERNATIONAL STANDARDS ............................................................................................................. 231
WHY PUBLIC INTEREST TEST IS IMPORTANT .................................................................................. 232
DISCLOSING SECRET IN CRIMINAL CODES OF B-H ...................................................................... 234
CRIMINAL CODES IN BOSNIA AND HERZEGOVINA ...................................................................... 234
WHO CAN BE PROSECUTED FOR DISCLOSING SECRET DATA? ................................................ 238
ACQUIRING SECRET DATA ILLEGALLY ............................................................................................... 241
RESTRICTIVE CRIMINAL CODES .......................................................................................................... 242
RIGHT TO ACCESS PUBLIC INFORMATION AND STATE SECRETS ............................................. 243
ARE SEVERE PENALTIES IN CRIMINAL CODES CONTRARY TO PUBLIC INTEREST?............. 245
LEGISLATIVE CONSEQUENCES FOR WORK IN JOURNALISM AND FREEDOM OF EXPRESSION ... 246
Chapter 9: REGULATION OF ELECTRONIC MEDIA...................................................................... 249
REGULATION OF BROADCASTING IN B-H ........................................................................................ 251
LICENSES ON THE PRINCIPLE OF COMPETITION .......................................................................... 251
FORMING THE REGULATORY AGENCY............................................................................................... 252
WHAT THE COMMUNICATION LAW PRESCRIBES ......................................................................... 254
WHAT THE AGENCY IS IN CHARGE OF AND WHAT IT CONSISTS OF ...................................... 257
THE GENERAL DIRECTOR ...................................................................................................................... 258
(IN)COMPLETE FINANCIAL INDEPENDENCE .................................................................................. 259
RULES AND CODES OF THE AGENCY ................................................................................................ 261
ENCOURAGING SERVICE PROVIDERS COMPETITION ................................................................. 263
PROCEDURES IN CASES OF VIOLATIONS OF THE CODE, RULES OR LICENSE CONDITIONS ...... 265
OVERVIEW OF VIOLATIONS OF RELEVANT RULES AND REGULATIONS ............................... 266

1998-2001 Period ................................................................................................................. 266

2002-2010 Period ................................................................................................................. 268
LAWS ON PUBLIC RTV SYSTEM AND SERVICES ............................................................................ 272
BASIC PRINCIPLES OF THE LAWS ........................................................................................................ 273
OTHER LEGAL PROVISIONS ................................................................................................................. 278
LAW AMENDMENTS ............................................................................................................................... 279
DYSFUNCTIONAL SOLUTIONS ............................................................................................................ 281
Chapter 10: CODES OF JOURNALISM ............................................................................................. 283
RULES AND CODES OF PROFESSIONAL ETHICS OF JOURNALISM ......................................... 285
MAIN PRINCIPLES OF CODES OF ETHICS ........................................................................................ 285
SPECIFICITIES OF THREE CODES ......................................................................................................... 288
PERCEPTION OF REGULATION AND SELF-REGULATION ............................................................ 289
COMPARING THE MOST SIGNIFICANT STANDARDS OF THE CODE ......................................... 291

Ban on hate speech ............................................................................................................. 291

Protection of privacy and minors ................................................................................... 294
RECOMMENDATIONS TO ADVANCE PROFESSIONAL STANDARDS OF JOURNALISM ...... 298

Strengthening the watchdog function ........................................................................ 299

Support to media literacy ................................................................................................. 299
Chapter 11: MEDIA OWNERSHIP ...................................................................................................... 301
MEDIA OWNERSHIP AND CONCENTRATION: CONCEPTUAL AND LEGAL FRAMEWORK ....... 303
OVERVIEW OF THE ROLE OF THE MEDIA IN A DEMOCRATIC SOCIETY .................................. 304
MEDIA CONCENTRATION CONCERNS .............................................................................................. 305

Merger typologies ............................................................................................................... 306

Implications of media ownership concentration ..................................................... 308
THE EU APPROACH TO MEDIA OWNERSHIP CONCENTRATION .............................................. 308

Overview of the main actors in the application and elnforcement of

EU competition policy ............................................................................................................................. 309

Policy instruments for media ownership concentration ........................................ 310
B-H LEGAL MEDIA OWNERSHIP FRAMEWORK .............................................................................. 312

Actors and policy instruments for B-H ownership concentration policy ......... 312
GROWTH OF CONCENTRATION AND DIVERSITY OF OPINIONS .............................................. 315
AUTHORS ................................................................................................................................................... 317
Annex 1: OVERVIEW OF THE CRA DECISIONS REGARDING COMPLAINTS ON CONTENT ... 321
DECISIONS RELATED TO THE COMPLAINTS ON PROGRAM CONTENT 1998-2001 ........... 323
OVERVIEW OF VIOLATIONS OF THE CODE 2002-2010 ............................................................. 326
BIBLIOGRAPHY ........................................................................................................................................ 338
RE VIE WS
N E E D F OR MED IA L AW IN BOSN IA AND HER Z EGOVINA

Zdravko Grebo
It is not common to begin an assessment/evaluation and review of a serious

text with a subjective opinion. However, this seems necessary to me. As soon
as I started reading the Primer, as an attorney of general practice, I felt uncomfortable judging the work, written and structured according to the highest
standards and by the authors who, as far as I know, are experts for individual
aspects of the field of media law. Finally, this work is a very successful, as well
as a pioneer endeavor, which is not always the case for this type of publications.
Therefore, these top experts made a rather well theoretically based book that is
a collection of normative and institutional solutions international and domestic exact analyses of court and out-of-court practice and last but not least, is a
reminder and a handbook for all actors who work and produce within the media
space. Succeeding to achieve all this and place it logically between the covers of
one book is not a small task.
Although at first glance it seems that this is a guild (in the true sense of this
term) of legal-journalistic analysis which will hopefully be the foundation for a
new legal branch (immediate association is the analogy to the initial tendency of establishing election law), it is important to point out that even this first
attempt offers unimaginably wider implications. On short, these texts do not
provide us with only a clear overview of legislation, jurisprudence and rules of
professional regulations and self-regulations. This text provides much more. In
the background, the text treats great and eternal topics: freedom, democracy,
state with legislation, ways of protecting subjects, freedom of thought and expression, ways of communication, peace, tolerance, truth If this list of ethical
and political ideals seems pretentious, I am certain that media sphere with all
its potential which can bring freedom - but why not with bringing damage, too
- significantly participates in shaping even a community organized in the best
way and its well-situated future.
Without authorization, because it sounds prophetic: At first there was a word.
Both logos and mitos are the words that represent roots of civilized life. And so,
even if media are not the only actors in this decisive game, they are certainly
some of the important players. Therefore, we should do everything possible
to make sure that if the word was at the beginning, it should not be at the end.
Naturally, even though this last sentence sounds cataclysmic, it does not mean I
am looking for trouble. On the contrary! Here, I speak about two tangent elements
arising out of the light of texts within the covers you have in your hands. The first is
the place and the role of media in shaping the public or the public opinion. There
15
is a great responsibility of media employees who change the opinions of the audience as a resonant box that perhaps reacts but does not actively shape political
decisions. The basic need is to create citizen institutions of autonomous communication.. How and where can that be done, if not in the space of the media?
The second, although local, circumstance is that the entire system, theory and
analysis of practice must be tested on the case of Bosnia and Herzegovina. This
toponym figures in the very title of this text, too. To say it politely, our state has
a pretty unique constitutional organization. Additionally, we live in a post-war
society where resentments are in the forefront of everyones mind. Furthermore,
if we add the fact that we live within a complex framework where comprehensive doctrines rule national, religious, cultural and linguistic the only solution is overlapping consensus. Nobody wants to destroy this or that person or
group. Even if, perhaps, deep down someone would want to, we still have to live
together, even reluctantly. The goal of this long passage is to say that, if we truly
accept what has been said, there is no better-organized channel than media for
now, no matter what this ultimately means.
At the end, to the best of my belief, I want to persuade you to accept my suggestion that your professional, academic, and civic duty is to read this book. One
of the additional values of this text is that the introduction provides you with a
precise and concise overview of all chapters content. You can even choose parts
with the content you are interested in. Without any doubt and without any unnecessary politeness, I strongly believe that here we got an extremely valuable
text.
16
WHY W E N E E D A PR I M E R OF ME D IA L AW
Monroe Price
A Primer of Media Law and Policy is a document designed to benefit its society.
Any such Primer begins with certain assumptions: By understanding existing
media institutions and practices, problems can be comprehensively identified,
analyzed and addressed. The rule of law can be advanced only if there is a comprehensive sense of how law is articulated and how enforcement is attempted.
A sense of history and context are essential. No understanding of media law and
policy in Bosnia and Herzegovina is possible without addressing the European
framework and the history of evolution of the special institutions of this fragile
and complex society. A commitment to the proper working of media institutions is a necessary part of healthy state building.
Each effort at a Primer, for a variety of societies, begins with exploring the enabling environment for a sustainable and effective media sector. Creating such
a sector depends on some common commitmentscommitments to free expression values, to independence, to attention to the economic basis of the
media, and to the rule of law. But in each disparate context, the enabling environment is different. Even a subject as seemingly obvious as independence
has very difficult local outcroppings. Independence sounds absolute, but every
institution has dependencies and influences that are tied to budget, tied to governing structure, and tied to the large-scale political ambience. This Primer takes
on the difficult task of describing the enabling environment for the unique set
of circumstances that constitutes Bosnia-Hercegovina.
Certainly, that enabling environment is deeply unusual, deeply demanding of
all of those who are trying to make the society work effectively and in a humane
manner. Here there must be special attention to the consequences of war and
conflict. There is the existence of the separate entities and the Herculean task
of negotiating federalism and overall state-building. Levels of authority multiply and cascade upon each other; each historic division echoes in regulatory
complexity. Here, too, there is the long and impactful role of the international
community as a strong regulatory presence. There are the special legacies and
presences of ideology, religion, and ethnicity. A Primer must deal with these
questions while staying with the formal, the rules, and institutions themselves.
This document is a wondrous contribution. It does something significant; it
presents a body of law. It collects examples and provides insight into what those
examples mean. In the areas of defamation, privacy, licensing, and other matters, the contributors painstakingly find elements of an overall perspective and
then shape and mold that material to present it in an even more real way; they
17
create a map that can be impactful on industry, citizens and state.

In the course of their analysis, they demonstrate the sheer complexity of law.
How is one to absorb and reflect the insights from a distant European Court
of Human Rights or other products of tribunals and bureaucracies? The document describes these instruments and their interpretations but, by doing so, the
document underscores the problem of distance and understandinghow to
translate the needs of Bosnia and Herzegovina to a far-off set of judges and the
ways in which to translate the outcome of deliberations when they are issued.
Many difficult questions lie ahead, difficult questions that are beyond the scope
of this Primer.
To what extent does legal culture affect political culture? Can media law system
that operates better lead to a more functional mediaone that assists in political integration, if that is the goal? How should emerging changes in the political
culture affect the regulatory policies relating to media? To what extent are budgetary and organizational issues in media institutions more significant barriers
than legal impediments? Ultimately, what is significant is the robustness of the
media sector, and how dedicated to informing the citizenry and how free it is of
animosity and divisionism. A quiet premise is that a perfected media contributes to a healthy political culture, one that makes conflict a matter of debate in a
democratic society and not a resort to arms. The Primer assumes that a properly
functioning legal system effectively increases the likelihood that the media can
play that role. Ultimately, this idea of a healthy media contributing to a healthy
polity is the driving forces behind media law and media assistance. The primer
is a tooland we hope an effective toolto make that possibility more likely.
This project has been extraordinarily fortunate in having a superb team engaged in bringing the Primer to realization. In Sarajevo, a wise and dedicated
team was lead by Amer Dihana and Mehmed Halilovi. In Philadelphia, Libby
Morgan has directed the role of Annenbergs Center for Global Communications
Studies, aided by Katharine Larsen. Sue Folger of Internews was a steadying and
creative hand throughout.
18
I N T R O D U C TION
Amer Dihana and Mehmed Halilovi
How is freedom of expression legally ensured in Bosnia and Herzegovina? Is ensuring this freedom respected and applied, and if so, to which extent? What is its
application like? What are the special foundations of media law, freedom, responsibility, and limitations? What is their application like? How much do the courts
in this country follow the standards of European Court of Human Rights? Does
media community respect its own professional standards?
We received only partial answers to these and similar questions. Now, for the first
time, we get them in this scope and in this unique publication. We named this
publication Media Law in Bosnia and Herzegovina, that is, B-H Primer. The title in
English (Primer) is known in media community and in the world.
In every country that published a Primer, preparing and publishing it was justified
by the needs of media community, legislature, public authorities, and civil society.
In Bosnia and Herzegovina, due to a number of constitutional, legal, and political
specificities, there are even more reasons and greater needs for such publication.
It is not very simple to get familiar with or to understand the very complex system
of institutions, norms and practices in B-H. As a collection of norms and practices
representing the environment in which press, radio, television and new online
media operate, media law is, in some segments, even entirely set aside as less
important with regard to the focus of public interest, the hierarchy of legal regulations, and even the practice. Although most laws in this field get very high grades
even in international surveys and researches, media law does not have an adequate representation. There is no law school, nor journalism studies department,
where media law is a regular course (occasional lectures and media clinics are not
an adequate and complete substitute). Moreover, there are only few judges and
lawyers which specialize in this field while media community only occasionally
tackles this issue and mostly it does so one case at a time.
One of the primary goals of Internews in B-H, which realizes a five-year USAID
project of support to the media and strengthening media environment in B-H,
is advancing the media legislature. Along with a number of specific measures
in the promotion of media law at universities and within media community,
this B-H Primer is the most significant step. The Primer is primarily intended for
the media community, as well as for judges and lawyers. In addition, it could
also be useful to governmental and non-governmental organizations, necessary literature to students of law and journalism and all citizens who have media freedom at their heart and for whom the right to freedom of expression is
a lodestar. Therefore, the Primer is intended for all who find information and
19
mass communication important citizens, associations of civil society, professional organizations and governmental institutions.
The B-H Primer is not an encyclopedia of all that could be defined under the concept of media law in its widest sense. Spatial or other limitations do not allow this,
nor would it contribute to fulfilling the goal even if these limitations did not exist.
In the first chapter, Libby Morgan gives basic guidelines for defining a desirable context within which it is possible to develop free and independent media. The author
emphasizes the values of free press and rule of law as crucial determiners of such environment. Although the freedom of press is a precondition for a functioning democratic society, it is not absolute. Instead, it is limited by the interests of individuals
and the society. Morgan believes that a legally enabling environment should heed
such dynamics and provide adequate balance between these interests.
The second chapter consists of two texts. In the first text, Mehmed Halilovi and
Mirjana Nadadin-Defterdarevi present constitutional and legal determiners
that ensure freedom of expression in general and the free work of media in B-H
in particular. Halilovi and Nadadin-Defterdarevi point at the fact that international conventions and declarations on human rights formally represent a part
of legal system of B-H. Beside this, B-H accepted all international legal standards
established by the European Court of Human Rights, as well as numerous recommendations and declarations of the Council of Europe. The authors emphasize
that the legislative framework for media activities is very complex, particularly
because, apart from local actors of public policies, the international community
in B-H proved to be an important legislator, as well. Practically, the international
community passed a completely new legislative framework for media through
the Office of High Representative and through the activities of other organizations. The scope of the intervention included passing laws in the sphere of free
access to information, decriminalization of defamation, public RTV broadcasting,
Communication Law, etc. Even though all these laws mostly reflected the highest
world standards at the time when they were written, it is still necessary to notice
that these activities of international community mainly followed the inefficiency
of public authorities and their incapability of regulating the matters of the right
to information. This means that such framework was not a result of internal, B-H
democratic debate, which led to an inadequate implementation of legal solutions
that came later.
In the second text of this chapter, Mladen Srdi gives a thorough overview of international sources which ensure freedom of thought and expression, including declarations, resolutions, and recommendations of the Council of Europe which define
the standards of operations in media sphere. A special attention is paid to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Article 10 of the Convention defines freedom of expression as a basic human right
20
and is thus particularly important for media activities. The author points out that the
Convention stipulates the realization of the right to freedom of expression along
with obligations and responsibilities; this makes this provision unique in the Convention and cannot be found in any other provision regulating rights and freedoms.
Srdi elaborates on the stance given by Morgan in the first chapter at length that
the right to freedom of expression can clash with other rights provided by the European Convention. In this context, he identifies hate-speech and the right to privacy
as potential limitations to freedom of expression. The role of courts in these situations is to determine which right has the priority. In this way, the courts importance
is emphasized because they interpret written rules practically. Srdi emphasizes that
the application of all international norms regarding human rights largely depends
on the interpretation of standards they contain.
The third chapter thoroughly examines the role of courts when interpreting the
right to freedom of expression. In the first text, Mladen Srdi considers basic standards of practice of the European Court of Human Rights. Generally, the author
claims that the jurisprudence of the Court developed and from a rather conservative approach which provides states with more authorizations it turned into a more
liberal approach which gives less discretion to courts when putting restrictions
on freedom of expression. The author constantly emphasizes that public officials
and politicians should demonstrate a greater level of tolerance when it comes to
criticism of their work than regular citizens. Here, the author mentions three important standards adopted by the European Court: (1) distinction between facts
and opinions, (2) establishing the balance between the right to freedom of expression and the right to protection of reputation as well as the obligation of practice
of responsible journalism, (3) establishing the proportionality between damage
caused by defamatory expressions and measures imposed on liable persons. Beside this, Srdi also writes about journalists right to not disclose their sources of
information unless it is justified by a priority need of public interest. Even in this
case, such needs or interests must have the balance with the need of protecting
journalistic sources as a part of protection of freedom of expression.
In the following text, Sevima Sali-Terzi examines general standards and the practice of the Constitutional Court of B-H when considering cases referring to freedom of expression. The author emphasizes that this Court is the ultimate authority
for analyzing a possible violation of freedom of expression in B-H because it has
the authority of appeal regarding the matters contained in this Constitution when
they become the subject of a dispute before any court in Bosnia and Herzegovina.
The author shows that the Constitutional Court of B-H follows the same principles
as the European Court of Human Rights when discussing cases related to freedom of expression. Sali-Terzi particularly elaborates on the rule which requires
conducting the test of necessity in a democratic society which demands that,
when deciding on whether there was a violation of Article 10 of the European
21
Convention, it is assessed whether the interference of domestic authorities in this

freedom corresponds to an urgent social need, whether it is proportional to a legitimate goal which is to be achieved and whether the reasons and justifications
for such interference given by the authorities are relevant and sufficient.
In the third text of this chapter, Mladen Srdi writes about the treatment of public
figures and consequences of matters of public interest. The author emphasizes that
there are quite equalized positions of both legal theory and practice in this field.
Main conclusions state that political debates enjoy the highest level of protection
as well as that politicians and other public figures voluntarily entered public sphere
hence their boundaries of accepting criticism must be wider than those of regular individuals. When referring to matters of public interest, journalistic freedom includes a possible exaggeration and even provocation. This means that it is necessary
to determine whether an issue is in fact a matter of public interest. On the other
hand, the private life of politicians should be covered in a less polemical manner
even when information about their private life is already available to the public.
The fourth chapter speaks about the normative framework of the right to information in B-H, as well as about the laws on free access to information. Mirjana
Nadadin-Defterdarevi considers the laws that define public information at various levels in B-H. The author claims that distribution of authorizations stipulated
by the Constitution and the lack of every common normative base were the assumptions for newly created provisions which are not equalized. While Republika
Srpska arranges this field on the basis of a strict decentralization, in the Federation of B-H there are no legal provisions at entity level instead this authorization
is entrusted to cantons. However, not all cantons have passed adequate laws and
those that have - arranged this field in very different ways. It is interesting that
these laws were not passed at the initiative of international community in B-H or
under its pressure. The author states that types of penal provisions contained in
cantonal laws in the best way illustrate the actual relation of government and media, discriminating the media based on the manner in which they present political
information with readiness of always sanctioning the media more conscientiously
thank a state boy which, for example, deprives the media of information that was
requested. Also, in spite of the fact that the international community was not included in creating the law, domestic legislators did not fail at the imitation. This is
how three cantonal laws are in fact a reception of the Law on Public Information
of the Republic of Croatia.
Mehmed Halilovi writes about free access to information acts and states that,
in spite of certain shortcomings, they are mainly based on the highest international standards. The main principle of these laws is that the public has the right
to access to information owned by public authorities/bodies to the greatest extent possible in line with public interest. The access to this information has three
main goals: it encourages the openness of authorities, advances democracy and
22
contributes to the fight against corruption. The access to information can be limited only in three cases: (1) if it is expected that disclosing information can cause
a significant damage to legitimate functions of the government, (2) in order to
protect commercial interests of a third party and (3) in order to protect personal
interests and the privacy of a third party. In any case, the information contained in
one of these three protected categories is not automatically exempted from disclosure, as public bodies are required to conduct the public interest test in order
to consider whether disclosure of such information is justified by public interest.
Halilovi writes that the most serious problem in practice is the lack of compliance
with other laws that exclude or significantly reduce the right to free access to information and the fact that there are many such laws at both entity levels and at
the level of the state of Bosnia and Herzegovina.
The fifth chapter discusses defamation. Mladen Srdi and Mehmed Halilovi give
a detailed picture of the very legislative framework in force in B-H, as well as of
general principles found in judgments of the European Court of Human Rights.
Beside this, the authors give an overview of court practice in B-H and in the region.
The legislative framework of B-H covers all the important principles defined by
the European Court of Human Rights. These laws decriminalized defamation and
they established civic liability in lawsuits and the possibility of compensation for
damage in cash. The protection of national symbols and public officials was abrogated, the authorities are not allowed to sue media outlets and journalists and the
balance between the right to freedom of expression and protection of reputation
and dignity of a person was established. Laws encourage professional conduct of
journalists and ensure full protection of journalistic sources.
By analyzing court practice, the authors emphasize that, in the past ten years,
when laws on defamation came into force, this practice brought a lot more positive than negative experiences. As a contribution to this, the authors say that now
there are a lot less lawsuits, that demands for compensation are a lot more moderate and that the number of judgments where the statement of claim was accepted is not bigger than 30% compared to the number of lawsuits. On the other
hand, the authors advise journalists to pay special attention to the accuracy of
quoted and disseminated information as well as to the authenticity of the source
of information. Also, it is recommended to journalists that they clearly provide the
source of information as well as to provide the right to response of the party to
which expression refers in case there is a dispute.
The sixth chapter consists of three texts that cover the relation of media and judicial system. In the first text, the author, Sevima Sali-Terzi, writes about the judicial
system and its authorities at the level of B-H, and at the levels of FB-H, RS and
Brko District, and then she gives a schematic overview of protection of rights in
lawsuits regarding defamation and libel as well as the procedures stipulated by
Communication Law.
23
The author notices that, in spite of the distribution of authorizations for regulating
the protection against defamation, procedural protection is the same in all three
administrative-territorial parts within B-H and implies that, at the first instance of
lawsuits related to protection against defamation, there are municipal, that is, basic courts, and then there are also courts of second instance for appeals: cantonal
courts in FB-H, county court in RA and the Court of Appeal in BD. When it comes
to special cases, the system of protection also includes the authorization of the
Supreme Court of RS or FB-H, respectively the Court of Appeal in BD, as well as
addressing the Constitutional Court of B-H, and finally, the European Court of Human Rights. In the case of media disputes based on Communication Law, the author states that even though it provides the Communications Regulatory Agency
with authorization of sanctioning violations of electronic media in administrative
proceedings, the appeal involves the Court of B-H and in some cases the appeal
can be made firstly before the Constitutional Court of B-H and then the European
Court of Human Rights.
In the other two texts of this chapter, Mladen Srdi speaks about the burden of
proof in lawsuits and the protection of authority and impartiality of courts in order to ensure its function in society. Srdi considers the dilemma of whether the
burden of proof belongs to the defendant or the plaintiff. The author believes that
it would be wrong to place this burden exclusively on the plaintiff and claims that
there should be a tendency of equally distributing the burden of proof. The principles of journalistic profession require verification of facts before they are published. Therefore, a court should determine whether there have been reasonable
efforts to realize this principle. However, journalists cannot be asked to prove the
absolute truth because at the moment of publishing information it is enough to
prove it true in line with circumstances and standard journalistic attention.
Regarding the limitation of freedom of expression with a goal of protecting the judicature, Srdi highlights that media reporting on cases which courts are not dealing
with must not jeopardize the authority and impartiality of judicature and it is precisely because of the protection of the role of judicature that freedom of expression
is sometimes limited so as to avoid possible pressures on judicature. Therefore, it
is not about preventing criticism, but about observing these cases in the light of
maintaining the undisturbed work of courts. It is important to mention freedom of
expression of judges by quoting the case when the European Court concluded that
freedom of expression is also applied to the position that one holds.
The seventh chapter written by Amer Dihana and Mladen Srdi speaks about
the privacy in media. At the beginning, the chapter discusses relevant articles
of the European Convention that refer to privacy and then cases dealing with
privacy in Europe and in B-H. The author especially emphasizes that the question of privacy in B-H is not regulated by one specific law. Instead, its elements
are found in several laws such as the Law on Protection of Private Data in B-H
24
or the Freedom of Access to Information Act. The authors highlight that the relation between the right to privacy and the right to freedom of expression is
rather delicate and they point at the need of conducting the public interest test
in order to determine whether certain intrusions into privacy are justified by
public interest. What is and what is not public interest is the question to which
both journalists and editors answer but also regulatory and self-regulatory bodies, the public and finally the courts. Regarding media violations of the right to
privacy in B-H, the authors conclude that such violations occur very often and
that there is a disproportion between the frequency of violation of this right
and the number of appeals to (self-)regulatory bodies and courts which possibly
indicates to the inefficiency of existing mechanisms of protection of this right.
In the eighth chapter, the author, Sevima Sali-Terzi, speaks about the limitations of
freedom of media due to national security and about achieving balance between
the right to information and protection of certain data in order to ensure national security. When it comes to international principles related to this matter, the Johannesburg Principles are particularly important as they give more advantage to the right
to information. On many occasions, international bodies quoted these principles
and stated that only certain information can enjoy full protection from publishing
and only for a certain period of time. Criminal codes at all levels of B-H include disclosure of secrets and state that all citizens can be prosecuted for this felony hence
journalists are covered by this, too. In this sense, criminal codes are restrictive and
require journalists to reveal their sources of information; this could jeopardize investigative journalism while the public trust would become lower due to the fact that
access to information of public importance is not enabled.
There are two texts in chapter nine. In the first text, Helena Mandi discusses the
regulation of electronic media. The chapter starts with the very beginning of
regulation of broadcasting in B-H, the establishing the Communications Regulatory Agency, the passing the Communication Law and the way frequencies are
awarded. The text gives main characteristic of the Law as well as of administrative bodies of the CRA. Financial issues are particularly important when they
impede the Agency from acting as an independent regulator. Beside this, rules
and codes issued by the Agency have a special place in this chapter, along with
the overview of sanctions. The author shows that the rules of the CRA are in line
with EU regulations. Based on the historical overview of rule violations, Mandi
concludes that, in the first three years of the Agency the cases mainly referred
to the violations of the Code on Broadcasting RTV Program, whereas later on,
most violations were related to the obligation of respecting the copyright and
the Code on Advertising and Sponsorship. The following period brought along
a lower number of cases related to hate speech. The author believes that year
2002 was pivotal: Compared to previous years, since 2002 there has been a decrease of the trend of violations of provisions related to hate speech, respect of
25
ethnic, cultural and religious diversity as well as abandoning programs which

carried the risk of causing ethnic or religious hatred or public damage.
In the second text of the chapter, Amer Dihana writes about legislative framework that regulates the system of public broadcasting in B-H. The author emphasizes that legislative design includes four basic characteristics of this system: autonomy, coordination, similarity, and interdependence. Still, in practice, most of
these provisions are applied in a manner in which the status quo is maintained.
Hence, the very legislative framework is described as complicated, incomplete,
and dysfunctional.
In the tenth chapter, the author, Vanja Ibrahimbegovi-Tihak, writes about ethical
standards of journalism, regulated by certain rules and regulations. These regulations are provided by regulatory and self-regulatory bodies, and by some journalistic associations. More precisely, there are the regulations given by the Communications Regulatory Agency, the Press Council of B-H and the association of B-H
Journalists. These bodies place a special focus on the protection of privacy, protection of children and minors, and the ban of hate speech. The author notices that
the respect of human rights and freedoms in the B-H media could be improved
through a better understanding of the function of regulatory and self-regulatory
bodies and that the codes of ethics must be ensured by an independent system
that would follow journalistic and editorial work.
The eleventh chapter of author ejla Jusufovi speaks about media ownership
concentration at both European and domestic level. The regulation of this field
was created in order to protect an efficient media production through fair competition at the market level and to ensure a democratic communication system
through ensuring the pluralism of ideas and opinions in the media. Even though
the media market of the EU shows an increase in concentration, the author concludes that the media market in B-H is not too concentrated, but that it is necessary to create a specific and adequate legal framework for this field.
This is a public debut of the B-H Primer, but this is not its last appearance before
the public. As it is posted on the website of Internews B-H along with numerous
links to relevant contents and sources, the B-H Primer is open to all comments,
suggestions, and new additions. Of course, the print edition is the first one and the
authors hope that the following editions will be more complete and up to date.
We invite all visitors and users to contact us, to give their suggestions and to help
us contribute to enriching new editions of B-H Primer.
26
Chapter 1
A LEGAL ENABLING ENVIRONMENT FOR
NEWS MEDIA ACTIVITY
Libby Morgan
News media do not operate in a political and social vacuum. In order to operate
freely and in a publicly beneficial manner, they must carry out their activity within a favorable legal setting, which we will call a legal enabling environment.
Before we consider the core components of a legal enabling environment for news
media activity, we must note that the development of such a setting requires the
existence in a legal system of two pre-conditions: recognition of what we will call
free press values; and a commitment to the values of the rule of law.
PRECONDITIONS FOR A LEGAL ENABLING ENVIRONMENT

I.Free Press Values
Recognition of press freedoms is viewed as essential for the well-being
of systems of democratic governance. As stated by the European Court of
Human Rights in its landmark 1986 decision in Lingens v. Austria, freedom
of expression constitutes one of the essential foundations of a democratic
society and one of the basic conditions for its progress and for each individuals
self-fulfillment, and [t]hese principles are of particular importance as far as
the press is concerned.1
News media rights are not absolute; the conduct of news media activitythe
gathering of facts and the various editorial tasks associated with the preparation of information and ideas for public disseminationis limited to some
extent to advance countervailing individual and societal values. The legal enabling environment describes which governmental acts constitute an improper interference with a fundamental rights structure. For example, defamation
laws represent a commitment to protection of individual reputationan important societal value inherent in recognition of the dignity of each person.
At the same time, however, the imposition of legal sanctions for statements
deemed defamatory will place burdens on the freedom of expression. A legal
enabling environment will be sensitive to this dynamic, balancing both sets of
interests.
Lingens v. Austria (9815/82), 8 July 1986, paragraph 41, at: http://cmiskp.echr.coe.int/
tkp197/search.asp?skin=hudoc-en (accessed 21 March 2012).
1
29
GENERAL CONDITIONS FOR THE ACTIVITIES OF FREE MEDIA
A LEGAL ENABLING ENVIRONMEN FOR NEWS MEDIA ACTIVITY
II. Rule of Law

The effective implementation of that balance is not possible without a societal
commitment to the rule of law. There are many formulations of this concept.
Here, we use the phrase to describe a legal system that combines two essential attributes: the promise of legal certainty and a commitment to fundamental
fairness for all its participants.
Both of these attributes are essential to a legal environment that enables the exercise of news media activity and the accompanying public benefits. One of the
gravest threats to the public benefits of functioning news media is the risk that
journalists will engage in self-censorship if they perceive that the legal system is
uncertain and unfair.
Four essential components of the rule of law can be identified:
1. Clear and accessible legal rules
The only enforceable legal rules must be those that have been adopted pursuant to
systematic procedures, are clear as to their meaning, and are accessible to the public.
If executive branch authorities are permitted to enforce non-transparent rules known
only to themselves, the essential values of predictability and fairness will be lacking.
2. Public authority bound by law
All administrative acts of public institutions must be based solely on legal norms,
and must be consistent with them. In applying the laws, public officials must
not act arbitrarily or outside the boundaries of the laws.
3. Fundamental fairness in administrative and judical procedures
All participants in the administrative process must be subject to the same generallyapplicable rules and procedures. One source for a listing of fundamental fairness
requirements is Article 14 of the International Covenant on Civil and Political Rights
(ICCPR), which is considered an international binding treaty.2 Article 14 provides
that all persons are equal before the courts and tribunals, and mandates, inter
alia, that everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law.
4. An indenpendent, effective judiciary
The judiciary cannot be simply another branch of the states administrative apparatus.
Instead, judges must possess the independence, jurisdiction, and willingness to
exercise meaningful review of the legality of governmental acts, and the legal culture
must be one in which such decision-making is respected and obeyed.
Yugoslavia signed the ICCPR on 8 August 1967 and ratified it on 2 June 1971; BosniaHerzegovina became a succession State Party to the Covenant as of 1 September 1993.
2
30
Media freedom can thrive only in a democratic society where other relevant
freedoms are secured, such as peaceful assembly and voluntary membership of
organizations.
On a more basic level, the fundamentals of free and independent media and
journalism can be described as follows:
1. Freedom of issuing newspapers and publications
If newspapers and publications are burdened with requirements such as prior
licensing and statutory capital requirements, the press is not completely free. In
most democratic countries, a newspaper or other publication can be established
without acquiring a license or governmental approval.
2. Independence of broadcast licensing and regulation
Licensing requirements apply most everywhere for radio and television
broadcasting. These requirements are justified by the need to ensure that scarce
radio frequencies used for broadcasting are given to those broadcasters that
comply with certain content, programming and technical requirements, and by
the need to prevent technical interference among broadcasters.
In most democratic societies, broadcast licenses are granted and regulated
by bodies independent of the government, meaning that their governance
structures are appointed, and their financing is structured, in such a way as to
prevent undue influence by any one part of the government.
3. Prohibition of all forms of pre-publication or pre-broadcast censorship
Prior censorshipwhere the government determines what can and cannot be
published in advance of publicationis one of the most serious constraints on
freedom of expression, in both broadcasting and print media. This prohibition does
not preclude the possibility of prosecuting the media after publication or broadcasting.
4. Freedom of accessing, obtaining and circulating information
The right to access information, particularly from the government, has become a central
element of freedom of opinion and expression and freedom of the press. In order to
fulfill their role as government watchdogs and encourage discussion and deliberation
on issues of public concern, journalists must have easy access to information.
Notwithstanding the above, there are exceptions to the right to circulate
information. Many countries, for instance, prohibit publishing information that
would undermine national security, would harm the countrys international
relations, or would expose military secrets during periods of war. Under
international law, these restrictions are limited.
Similar limitations are stipulated by Freedom of Access to Information Act in B-H
which also provides specific conditions. There will be more about this in Chapter 4.
31
FUNDAMENTALS OF FREE MEDIA AND JOURNALISM
Chapter 2
FREEDOM OF EXPRESSION
NORMATIVE FRAMEWORK
Mehmed Halilovi i Mirjana Nadadin-Defterdarevi
In line with the Peace Agreement signed in Dayton, USA in 1995, Annex IV of
the Constitution of Bosnia and Herzegovina,1 the entities have authority over the
media and public information, and additionally, the cantons in the Federation of
Bosnia and Herzegovina.
However, the state of Bosnia and Herzegovina (B-H) has both constitutional and legal
surety of freedom of expression, additionally enhanced by the acceptance of international
conventions and declarations on human rights. This means that international conventions
on the protection of freedom of expression are an integral part of domestic law.
The Constitution of Bosnia and Herzegovina2, just as the constitutions of both entities,
explicitly states that the rights and freedoms set forth in the European Convention
for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall
apply directly in Bosnia and Herzegovina and that they have priority over all other law.
The Constitution of Federation of B-H3, Annex named Instruments for the protection
of human rights which have legal power of constitutional provisions, lists twenty one
international conventions and declarations, among which there is the Universal
Declaration of Human Rights (UN), the European Convention for the Protection
of Human Rights and Fundamental Freedoms, as well as the 1996 International
Covenant on Civil and Political Rights. The Constitution of Republika Srpska4 does not
mention international conventions, resolutions and declarations individually.
As a member of the Council of Europe, Bosnia and Herzegovina also accepted all
international legal standards established by the European Court of Human Rights,
as well as numerous recommendations and declarations of the Council of Europe.
The General Framework Agreement for Peace in Bosnia and Herzegovina Dayton Peace
Agreement, Annex 4: Constitution of Bosnia and Herzegovina (Paris, 14 December
1995), entered into force on 14 December 1995, at: http://www.ohr.int/dpa/default.
asp?content_id=379 (accessed 21 March 2012).
1
Constitution of Bosnia and Herzegovina, OHR Office of the High Representative, at:
http://www.ccbh.ba/public/down/USTAV_BOSNE_I_HERCEGOVINE_bos.pdf (accessed 21 March 2012).
2
Constitution of the Federation of Bosnia and Herzegovina (Sarajevo, 30 March 1994), Official Gazette of FB-H No.1/94, entered into force on 30 March 1994, at: http://skupstinabd.ba/ustavi/f/ustav_federacije_bosne_i_hercegovine.pdf (accessed 21 March 2012).
3
Constitution of Republika Srpska (1992), Official Gazette of RS No. 28/94, entered into
force in 1994, at: http://www.ustavnisud.org/upload/4_8_2009_48_ustav_srpski.pdf
(accessed on 21 March 2012).
4
35
CONSTITUTIONAL AND LEGAL FRAMEWORK ENSURING FREEDOM OF EXPRESSION
CONSTITUTIONAL AND LEGAL FRAMEWORK ENSURING

FREEDOM OF EXPRESSION NORMATIVE FRAMEWORK
However, due to the untypical constitutional order that was established in the
Dayton Peace Agreement, legislative framework for realization of free work of
media and the right to freedom of expression represents a very complex network
of institutions, norms, and practices. There are fourteen constitutions in total (one
at the state level, two at entity level, one in Brko District and one in each of the ten
cantons) in addition to many laws that, directly or indirectly, influence the work and
activities of media organizations and of numerous sublegal acts and regulations.
All constitutions and laws contain provisions ensuring freedom of expression.
Article II, paragraph 3, point (g) of the Constitution ensures freedom of thought,
conscience and religion and, in point (h), ensures freedom of expression.
The constitutions of two entities contain such provisions as well.
The Constitution of Federation of B-H mentions human rights and freedoms in
chapter II, Article 1, and ensures fundamental freedoms including freedom of
speech and press and freedom of opinion, conscience and belief
The Constitution of Republika Srpska is more substantial and precise in this regard.
Part II (Human Rights and Freedoms), Article 25 states that freedom of thought
and orientation, conscience and conviction, as well as of public expression of opinion
shall be guaranteed. Additionally, Article 26 emphasizes that freedom of press and
other media of communication shall be guaranteed, and that free establishment of
newspaper and publishing houses, publishing of newspapers and public information by
other media in accordance with law shall be guaranteed. The same article also states
that censorship of press and other public information media shall be forbidden, and
that public information media shall be obliged to inform the public on time, truthfully
and impartially. The Constitution of RS also provides the right to correction of
incorrect information to anyone whose right or legally determined interest has been
violated, as well as the right to a compensation for damage arising therefrom.
As previously stated, freedom of expression is ensured by domestic laws. The Law
on Protection against Defamation, the text of which is almost the same in both
entities and the Brko District, contains this paragraph: The right to freedom of
expression, as it protects both the contents of an expression and the manner in
which it is made, is not only applicable to expressions that are received as favorable
or inoffensive but also to those that might offend, shock or disturb. The article that
follows states that this Law shall be interpreted so as to ensure that the application
of its provisions maximizes the principle of the freedom of expression.5
Law on Protection against Defamation of RS (Banja Luka, July 2001), Official Gazette of
RS No. 37/01, entered into force on 1 August 2001; Law on Protection against Defamation
of FB-H (Sarajevo, 2002), Official Gazette of FB-H No. 59/02, entered into force in 2002;
Law on Protection against Defamation of Brko District B-H (Brko, 2003), Official Gazette
of Brko District of B-H No.14/03, entered into force in 2003. All laws found at: http://
www.vzs.ba/index.php?option=com_content&view=category&id=9&Itemid=12.
(accessed 21 March 2012)
5
36
The protection of freedom of expression is also ensured by laws on public information

(in Republika Srpska), that is laws on media and public information in cantons of the
Federation of B-H (they exist only in six out of ten cantons). Additionally, they list the
basic principles of Article 10 of the European Convention for the Protection of Human
Rights and Article 19 of the Universal Declaration of Human Rights.
Article 4 of the Communication Law emphasizes that The regulatory principles
of broadcasting shall include the protection of freedom of expression and diversity
of opinion while respecting generally accepted standards of decency, nondiscrimination, fairness, accuracy, and impartiality.6
LEGISLATIVE ACTIVITIES OF INTERNATIONAL COMMUNITY

Legislative actions in the field of right to information in Bosnia and Herzegovina
have a strong mark of the normative activities of High Representative for Bosnia and
Herzegovina. Namely, Article 5 of Annex X (of the Agreement of Implementation of
Civil Part of Peace Accords) of General Framework Agreement for Peace in Bosnia
and Herzegovina prescribed that High Representative is the final authority in the
country with regard to the interpretation of the abovementioned Peace Agreement7.
Article II 1 (d) of the Agreement states that the High Representative provides
help, when he/she finds it necessary, for solving all problems that may occur
and that are related to civil implementation. Using the given authority and
acting based on concrete conclusions of Peace Implementation Council8, due to
inefficiency of local authorities and their incapability of regulating matters in the
domain of the right to information, the High Representative passed 17 decisions
between 1998 and 2002. Among them, the most important are:

Decision on the establishment of the Independent Media Commission

(IMC) (1998), and
Decision on the appointment of members of the Council IMC (1998),
Decisions on the restructuring of the Public Broadcasting System in B-H and on
Communication Law (Sarajevo, 2 September 2003), Official Gazette of B-H No. 31/03,
entered into force on 21 October 2003, Article 4, at: http://www.rak.ba/bih/index.
php?uid=1269443180 (accessed 21 March 2012).
6
Dayton Peace Agreement.
Conclusion of the Peace Implementation Council: Political Declaration from Ministerial

Meeting of the Steering Board of the Peace Implementation Council (Sintra, 30 May 1997),
enteres into force on 30 May 1997, at: http://www.ohr.int/pic/default.asp?content_
id=5180 (accessed 21. March 2012).
8
37
Such formulation of protection of freedom of expression does not refer only to

journalists and media, but to every person.
freedom of information and decriminalization of libel and defamation (30. 7. 1999.),

Decision amending the Law on Radio-Television of the RS (1999),
Decision on the implementation of the Law on Radio-Television of the

Federation (199.),
Second Decision on restructuring the Public Broadcasting System in B-H

(2000),
Decision Combining the Competencies of the Independent Media

Commission and the Telecommunications Regulatory Agency (2001),
and later Decision appointing new members to the Council of the
Communications Regulatory Agency (CRA) (CRA) of 29. 11. 2001.
Decision Imposing the Law on Radio-Television of Republika Srpska (24. 5. 2002.),
Decision Imposing the Law on Radio-Television of the Federation of Bosnia

and Herzegovina of 24. 5. 2002.,
Decision Imposing the Law on the Basis of the Public Broadcasting System and
on the Public Broadcasting Service of Bosnia and Herzegovina of 23. 5. 2002.
Decisions of High Representative, along with all controversies related to their

legal nature, were extremely important regarding the realization of the right
to information. Due to the authority and power of the person who made
them, these decisions efficiently removed political obstacles and established
normative standards adequate for current solutions in Europe and in the world.
The activities of the High Representative were significant for the realization
of the right to information even though they were particularly obvious and
directed at electronic media which was expressed equally to the aspect of
passing regulations, their supervision and conduction. This was confirmed
by passing the Law on Protection against Defamation in entities and Brko
District9 and the Freedom of Access to Information Act at both state and entity
Decision on freedom of information and decriminalization of libel and defamation, which was
issued on July 30, 1999, was based on authorizations provided by Article 5 of Annex X of
the General Framework Agreement for Peace in Bosnia and Herzegovina. It was particularly
based on Article II 1. (d) of this Agreement which provides the High Representative with
authorization to help overcome difficulties in cases when he/she finds it necessary, considering the application of civil part of the agreement which was additionally strengthened by
Conclusions at the Bonn Conference for Peace Implementation in line with Madrid Declaration, Chapter V, section 24 which asks the government of B-H to adopt the laws protecting
the freedom of information and particularly freedom of expression and movement of journalists, and to provide public with a greater access to information owned by the authorities
after the conclusion that legal regulations at the time did not provide this.
Law on Protection against Defamation of the Federation of B-H, Official Gazette of FB-H
59/02 and 73/05; Law on Protection against Defamation, Official Gazette of RS 37/01; Law
on Protection against Defamation, Official Gazette of Brcko District 14/03.
9
38
What came before another important set of laws was the Decision on freedom
of information and decriminalizing libel and defamation, created by the High
Representative in order to eliminate their discouraging effect in the sphere of
information which basically made trial for a so called tort of opinion possible.
Laws on protection against defamation in both RS and FB-H stipulate civic
liability for damage caused to the reputation of legal or private person by stating
false facts. Provisions of these laws will be interpreted in such way that they
ensure the principle of freedom of expression to the greatest extent possible.11
Passing the Freedom of Access to Information Act was motivated by easing the
realization of right to information. The Act was created in order to make almost all
information owned by authorities public, with rare exceptions. Although the domain
of this Act was already covered by the content of some cantonal laws on freedom of
information12, passing it was necessary and justified with the goal of having joined
norms related to obligation of publishing information controlled by public body as
lex specialis. B-H was the first country in the region that passed such law but the
results coming out of its application are not satisfactory. Shortcomings of this Act
are the result of inefficient mechanism of implementation and the fact that there are
no concrete criminal provisions. The latter came out of the Law on Amendments of
the Freedom of Access to Information Act in B-H13, which determined fines for criminal
Freedom of Access to Information Act in B-H (Sarajevo, October 2000), Official Gazette of
B-H No. 28/00, entered into force on 17 November 2000.
Law on Ammendments of the Freedom of Access to Information Act in B-H (Sarajevo,
2006), Official Gazette of B-H No. 45/06, entered into force in 2006; Freedom of Access to
Information Act in FB-H (Sarajevo, July 2001), Official Gazette of FB-H No. 32/01, entered
into force on 24 July 2001; Freedom of Access to Information Act in RS (May 2001), Official
Gazette of RS No. 20/01, entered into force on 18 May 2001.
10
See provisions of Article 2 of the Law on Protection against Defamation of FB-H and
Article 3 of the Law on Protection against Defamation of RS.
11
See: Law on Public Information of Tuzla Canton (Tuzla, 2 November 2000), Official
Gazette of Tuzla Canton 15/00, entered into force in 2000, Article12-17.
12
Law on Amendments of Freedom of Access to Information Act in B-H (Sarajevo, December

2009), Official Gazette of B-H No. 102/09, entered into force on 15 December 2009.
13
39
levels10, as well as by establishing the Independent Commission for Media

and the Telecommunications Regulatory Agency which later merged into the
Communications Regulatory Agency. The Communication Law, passed later
on, provided very detailed norms regarding the issues of the Communications
Regulatory Agency. Article 46 of the Communication Law is particularly
important as it regulates executive authorizations of the Agency in line with
European regulatory practice. Precise normative solutions brought consistent
practices of the Agency related to the realization of the principles prescribed by
Article 4 of the Law in order to protect and exercise freedom of expression. The
status of the Agency was to a great extent a result of the authority of its founder,
the High Representative, and the consistent respect of its rules.
acts, that was supposed to make the application of the Act stronger. In addition,
the position of the Freedom of Access to Information Act is jeopardized by passing
some other laws which place limitations on rights in its domain thus proclaiming
themselves lex specialis in relation to the Act itself14, degrading its role and purpose.
At state level these are: Law on Protection of Personal Data of B-H (Sarajevo, December
2001), Official Gazette of B-H No. 32/01, entered into force on 28 December 2001; the
Law on Protection of Secret Data of B-H (Sarajevo, July 2005), Official Gazette of B-H
No.54/05, entered into force in 2005; the Law on Intelligence Services of B-H (Sarajevo,
2004), Official Gazette of B-H No.12/04, entered into force in 2004.
14
40
Mladen Srdi
Freedom of opinion and expression is one of the fundamental civil and political
rights and it has been built into international instruments referring to human rights.
Without ensuring the freedom of opinion and expression there is no true democracy
in a modern society. The essence of freedom of expression is in the public, meaning
that what one person knows and thinks can be freely conveyed to the others.
The Preamble of the Constitution of B-H cites the Universal Declaration of Human
Rights1 and pacts related to civil and political rights2, as well as to economic, social
and cultural rights3 according to Article 2, paragraph 2 of the Constitution of
B-H4, European Convention on Human Rights are directly applied in Bosnia and
Herzegovina, and their application has priority over all other laws. Also, Annex 1 of
the Constitution establishes the list of 15 international agreements and conventions
in the field of human rights which are to be applied in Bosnia and Herzegovina.
Along with the rights contained in international agreements which have the
value of constitutional rights, the Constitution lists 13 fundamental rights. Among
these rights there are freedom of thought, consciousness and religion and
freedom of expression. All these rights are guaranteed without discrimination.
The European Convention on Human Rights5 occupies a special position in
the application of international documents mentioned above, which is the
obligation of all organs in Bosnia and Herzegovina (therefore, not only of
courts) that is prescribed by the Constitution. The Constitution states that the
application of European Convention will have priority over all other laws and the
Federation of B-H, Republika Srpska and Brko District B-H ought to fully respect
the accepted international standards.
Universal Declaration of Human Rigths (Paris, 10 December 1948) 217 A (III), entered
into force on 10 December 1948.
1
The International Covenant on Civil and Political Rights (New York, 7 March 1966) 660
U.N.T.S. 195, 5 I.L.M.352 (1966), entered into force 4 January 1976.
2
International Covenant on Economic, Social and Cultural Rights (New York, 10 December
1966), entered into force 3 January 1976, at: http://www2.ohchr.org/english/law/cescr.
htm (accessed 18 May 2011).
3
Constitution of Bosnia and Herzegovina, OHR Office of the High Representative, Article
2, paragraph 2, at: http://www.ccbh.ba/public/down/USTAV_BOSNE_I_HERCEGOVINE_bos.pdf (accessed 21 March 2012).
4
The Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4
November 1950), entered into force 3 September 1953.
5
41
INTERNATIONAL CONVENTIONS AND AGREEMENTS IN THE LEGAL SYSTEM OF B-H
I N T ER NAT IO N AL CON V EN TION S AND AGR EEM ENTS

I N T HE L E GAL SYSTEM OF B -H
The European Convention was therefore directly implemented into the local
legal system years before the membership of B-H in the Council of Europe.
As a universal act, the European Convention can be applied properly only if there
is familiarity with the decisions of the European Court. Therefore, the text of the
Convention cannot be read outside its court practice. The application of the Convention
hence functions on the basis of the system of precedent law and judgments of
the European Court of Human Rights, which explain and interpret the text of the
Convention. They represent binding precedents and according to legal status, they
are binding legal norms. Precisely because of this, once the Convention is ratified, local
authorities of all signatory states, including the ones where legal system is based on
continental law, have to treat the judgments of the Court of Human Rights as binding
laws. In that sense, it has to be understood that even the legal systems which are
traditionally continental apply the mixture of continental and precedent laws.
The main responsibility for the protection of rights determined by the Convention
is placed on signatory states and not on the organs of the Council of Europe. The
degree of discretion the court gives to one state is based on European standards. The
principle of the degree of discretion of the court is applied in different ways so that
the degree of discretional rights given to states varies depending on the context. This
is how, for example, one state has wide discretional rights in emergency situations
given by Article 15, or in the cases which are not too similar to the situations occuring
in signatory states, whereas this discretional right almost does not occur when it
comes to issues such as the protection of freedom of expression.
THE MOST IMPORTANT INTERNATIONAL SOURCES

Universal Declaration of Human Rights proclaimed by the United

Nations General Assembly in 1948 6
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in
teaching, practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.
Universal Declaration of Human Rigths, The Office of the High Commissioner for Human Rights, http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=src1
(accessed 17 May 2011).
6
42
The African Charter on Human and Peoples Rights was adopted by

the Organization of African Unity in Nairobi on 27 June 1981, and it
entered into force on 21 October 1986. 7
The American Convention on Human Rights was adopted on the

conference of the Organization of American States in San Jos on 22
November 1969, and it entered into force on 18 July 1978. 8
The International Covenant on Civil and Political Rights adopted by

the Resolution of United Nations General Assembly in 1966, came into
force on 23 March 1976.
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are necessary:
a) For respect of the rights or reputations of others;
b) For the protection of national security or of public order, or of public health or
morals.

The Convention for the Protection of Human Rights and Fundamental

Freedoms, which is the instrument of the Council of Europe, was signed in
Rome on 4 November 1950, and it entered into force on 3 September 1953.9
Article 10 of the European Convention:

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.
The African Charter on Human and Peoples Rights (Banjul, 27 June 1981), CAB/LEG/
67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986.
7
The American Convention on Human Rights (San Jos, 22 November 1969), entered into
force 18 July 1978.
8
The European Convention for the Protection of Human Rights and Fundamental Freedoms
(Rome, 4 November 1950), entered into force 3 September 1953.
9
43
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.
ROLE OF EUROPEAN COURT OF HUMAN RIGHTS

IN THE APPLICATION OF CONVENTION
The Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter the Convention) is the most important European international
document in this field. Its importance lies mainly in the system of implementation
of its decrees. The decrees found in the Convention state that the countries
ought to ensure human rights for everyone under their authority (that is, under
their jurisdiction), and the legal users of this obligation are individuals. In the
Convention, Article 1 forms this obligation by stipulating that High parties of
the contract guarantee for all individuals under their jurisdiction the rights and
freedoms established in the Part I of the Convention.10
Therefore, the Convention determines the content of rights and freedoms and
provides international protection in the case of violations, by introducing the most
complete system of protection in the form of European Court of Human Rights.
From 1959 until 1998, the European Court of Human Rights11 operated as one of
the three institutions of the Council of Europe (European Commission of Human
Rights12, the Committee of Ministers of the Council of Europe13 and European
Court of Human Rights) for conducting the obligations of the Convention in
signatory states.14 It was only in charge with making decisions regarding charges
previously considered by the European Commission of Human Rights.
Since November 1998 (with the adoption of Protocol 11)15, the Court of Human
10
Ibid.
11
European Court of Human Rights,at: http://www.echr.coe.int/echr/ (accessed 8 December 2011).
European Commission of Human Rights, at: http://ec.europa.eu/ (accessed 8 December

2011).
12
Committee of Ministers of the Council of Europe, at: http://www.coe.int/t/cm/home_

EN.asp (accessed 8 December 2011).
13
The Council of Europe, European Court of Human Rights: Facts and Statistics
1959-2009. April 2009, at: http://balkanshumanrights.org/bcms/wp-content/
uploads/2010/02/Facts-and-Figures-1959-2009.pdf (accessed 17 May 2011).
14
15
Protocol No. 11 of the Convention for the Protection of Human Rights and Fundamental
44
In the past fifty years, the Convention has also been developed by interpretations
given by the European Commission of Human Rights, the European Court of
Human Rights, and by the Council of Europe.
DECLARATIONS, RESOLUTIONS AND RECOMMENDATIONS
OF THE COUNCIL OF EUROPE
The Council of Europe has adopted additional Protocols that extended the span of the
Convention, resolutions and recommendations that developed and recommended
standards of action for member states and imposed sanctions on the states that do
not respect the decrees of the Convention. These are, among others:

Declaration on the Freedom of Expression and Information18 (adopted by

the Committee of Ministers on 29 April 1982, at its 70th session),
Declaration on freedom of political debate19 (adopted by the Committee of

Ministers on 12 February 2004),
the Resolution of Parliamentary Assembly 1142 (1997) on parliaments and

the media20,
Freedoms used to reconstruct the supervising mechanism which it established (Strasbourg, 5 November 1994), CETS No.155, entered into force 11 January 1998, at http://conventions.coe.int/Treaty/en/Treaties/html/155.htm (accessed 8 December 2011).
16
Supra note 5
The House of Justice Strasbourg, European Court of Human Rights: Operating Regulations (Strasbourg 1 November 1998), at: http://kuca-pravde.org/poslovnik.html (accessed 17 May 2011).
17
The Council of Europe, Declaration on Freedom of Expression and Information (29 April
1982), at http://www.coe.int/t/dghl/standardsetting/media/Doc/CM/Dec(1982)
FreedomExpr_en.asp#TopOfPage (accessed 21 March 2012).
18
The Council of Europe, Declaration on freedom of political debate (12 February 2004),
http://www.cpm.edu.rs/code/navigate.asp?Id=90 (accessed 21 March 2012).
19
20
The Council of Europe, Resolution 1142 on parliaments and the media (7 November
45
Rights has been a permanent institution within the Council of Europe and it has
been in charge of all the activities related to a certain type of conflicts, from
making representations to making binding decisions for the state in question.
Therefore, individuals have the option of going to the court. This extends the
possibility of individuals turning to international bodies in the sense that they are
actively legitimized participants in international legal proceedings. The Court of
Human Rights acts only after the legal resources in member states are exhausted.
Every person who considers their human rights to be violated can turn to the
Court. The organization and the authorization of this court are prescribed by the
Convention (Articles 19 5116), while the Court proceedings are governed by
Operating Regulations17, which entered into force on 1 November 1998.
the Resolution of Parliamentary Assembly 1003 (1993) on the ethics of

journalism21,
the Resolution of Parliamentary Assembly 1165 (1998) on the right to

privacy22,
Resolution (74) 26 on the right of reply the position of individuals in

relation to the press23,
the Recommendation of Parliamentary Assembly 1407 (1999) on media and

democratic culture24,
the Recommendation of the Committee of Ministers (2003) 13 on the provision

of information through the media in relation to criminal proceedings25,
the Recommendation of the Committee of Ministers No. R (97) 21 on the

media and the promotion of a culture of tolerance 26,
the Recommendation of the Committee of Ministers No. R (99) 15 on

measures concerning media coverage of election campaigns27,
the Recommendation of the Committee of Ministers No. R (97) 20 on hate

speech 28 and
the Recommendation of the Committee of Ministers No. R (2000) 7 on the

right of journalists not to disclose their sources of information.29
1997), http://www.cpm.edu.rs/code/navigate.asp?Id=79 (accessed 21 March 2012).

The Council of Europe, Resolution 1003 on the ethics of journalism (1 July 1993), http://
www.cpm.edu.rs/code/navigate.asp?Id=80 (accessed 21 March 2012).
21
The Council of Europe, Resolution 1165 on the right to privacy (26 June 1998), http://
www.cpm.edu.rs/code/navigate.asp?Id=81 (accessed 22 March 2012).
22
The Council of Europe, Resolution (74) 26 on the right of reply the position of individuals
in relation to the press (2 July 1974), http://www.cpm.edu.rs/code/navigate.asp?Id=88
(accessed 22 March 2012).
23
The Council of Europe, Recommendation 1407 on media and democratic culture (29 April
24
The Council of Europe, Recommendation 2003 on the provision of information through

the media in relation to criminal proceedings (10 July 2003), http://www.cpm.edu.rs/
code/navigate.asp?Id=82 (accessed 22 March 2012).
25
The Council of Europe, Recommendation No. R (97) 21 on the media and the promotion
of a culture of tolerance (30 October 1997), http://www.cpm.edu.rs/code/navigate.
asp?Id=83 (accessed 22 March 2012).
26
The Council of Europe, Recommendation No. R (99) 15 on measures concerning media

coverage of election campaigns (9 September 1999), http://www.cpm.edu.rs/code/navigate.asp?Id=84 (accessed 22 March 2012).
27
The Council of Europe, Recommendation No. R (97) 20 on hate speech (30 October
28
The Council of Europe, Recommendation No. R (2000) 7 on the right of journalists not to
disclose their sources of information (8 March 2000), http://www.cpm.edu.rs/code/navigate.asp?Id=87 (accessed 22 March 2012).
29
46
Therefore, the application of all international norms of human rights largely

depends on interpretations of standards which they contain, that is, the concepts
which are not defined by the text but the meaning of which is implied instead.
RESPONSIBILITY OF A STATE ACCORDING TO ARTICLE 10

Related to Article 10 of the Convention, member states of the Council of Europe
have negative and positive obligations. The main obligation according to Article 10
is abstaining from illegal interference in the realization of the right to freedom of
expression. State mechanisms ought to avoid any legal, judicial, or administrative
interference with the right promoted by Article 10. As a general rule, according to
Article 10 paragraph 1, all limitations of freedom of expression should be restrictively
applied.
Positive obligations of one state refer to the fact that Article 10 also demands
states to take positive measures in order to promote the right to freedom of
expression. Although Article 10 is primarily concerning the regulation of
activities of state organs, it is applicable to non-state organizations and private
persons as well. The court demands states to take action when individual rights
from Article 10 are endangered by non-state factors and omission to act can
lead to interference according to Article 10.
Article 10, paragraph 2, says that interference of a state with the rights contained
in Article 10, paragraph 1 has to meet the following criteria:
1. it has to be prescribed by law;
2. it has to be necessary in a democratic society;
3. it has to pursue legitimate goal in line with Article 10, paragraph 2 which
taxativelly states the circumstances in which the right to freedom of
expression of one person can be legitimately limited.
47
These documents express the principles and directions for the members of the
Council of Europe which are headed towards the democratization of freedom of
expression. The Declaration on freedom of political debate in the media gives the
principle public supervision of public officials which makes public officials accept
being supervised and criticized by the public especially through the media,
regarding the way in which they carried out or carry out their function to the
extent which is necessary in order to ensure transparency and responsibility in
carrying out their function. The same declaration expresses the freedom of satire,
so that the humoristic and satirical genre receives protection through Article 10 of
the Convention, allowing a greater degree of exaggerating and even provoking
through speech as long as the public is not deceived when it comes to facts.
These are the following circumstances:

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 and
For maintaining the authority and impartiality of the judiciary.
Therefore, interfering with the rights contained in Article 10, paragraph 1, can be
justified in case the states objective was to achieve one of the abovementioned
legitimate goals. Limitations that do not belong to one of these categories will
not be allowed and the interference will represent a violation of Article 10. When
examining individual cases, the Court will, while assessing the facts, decide
whether the interference happened in order to achieve one of the legitimate
goals or not. Therefore, the limitations which state authorities apply on the
realization of the right to freedom of expression cannot legitimately rely on
bases outside the list given in paragraph 2 such as: the reputation or the honor
of a state or of a government,the reputation or the honor of a nation,state and
other official symbols, the reputation or the authority of public organs (except
courts), which still sometimes happens in the practice of member states of the
Council of Europe. The span of possible disturbances (formality, conditions,
limitations or sanctions) in the realization of the right to freedom of expression
is very wide and there are no predetermined boundaries.
Such types of disturbance by the authorities (hence formality, conditions,

limitations, or sanctions) can be:

Criminal judgment (with fine or imprisonment),
Charging to pay for the damage in civil lawsuit (as it is in Bosnia and
Herzegovina)
Ban of publishing,
Seizure of publication or some other means used to express ones opinion

or deliver information,
Refusal to issue a work license for electronic media,
Ban of working in journalism,
Injunction of the court or some other organ to reveal journalistic source

and/or sanctions if this is not done, etc.
48
Freedom of expression is a specific right but, at the same time, it is also a part of
other rights protected by the Convention. Moreover, the freedom of expression
can clash with other rights protected by the Convention such as the right to fair
trial, the right to privacy, the right to beliefs and religion. When such clashes
occur, the Court is supposed to establish the balance in order to determine
which right will be treated as the primary one.
Right to privacy
The idea of having the realization of the right to freedom of expression carry
obligations and responsibilities is unique in the Convention and cannot be
found in any other decree regulating rights and freedoms. In that context, the
right to freedom of expression can often clash with the right to privacy protected
by Article 8 of the European Convention of Human Rights. Therefore, in 1998,
the Resolution of the Council of Europe No. 1165 was adopted. The Resolution
refers to the right to privacy, inviting member states to adopt laws guaranteeing
the right to privacy in case they do not already have such laws, or to amend
the existing laws and guarantee that, among others, the person whose right to
privacy is violated has to have the right to press charges in civil proceedings and
ask for the compensation for the damage which he or she suffered.
The Resolution emphasizes that editors and journalists can be charged with the
violations of the right to privacy under the same conditions as for defamation;
that is, when they publish data which are later proved to be incorrect, editors
should be obligated to publish an equally prominent correction on the demand
of those in question; it is also highlighted that the people whose right to privacy
has been violated should be enabled to sue press-photographers and other
directly involved people for video and audio tapes and for photos which could
have not been made if press-photographers had not got onto a private property
in an unauthorized way. The Resolution specifically recommends the states to
encourage media to pass internal codes regarding the publishing of such data
and audio or video tapes and to establish one body to which the victims of
violations of the right to privacy can file a lawsuit and request the publishing of
a correction.
Beside the fact that it can clash with the realization of other human rights,
freedom of expression plays an important role in the protection of other rights
protected by the Convention especially with regard to the realization of effective
49
RELEVANCE OF ARTICLE 10 OF THE CONVENTION FOR

ACTIVITIES OF THE MEDIA
political democracy. Without ensuring that the right to freedom of expression is

protected by independent and impartial courts, it is difficult to imagine a real
democracy.
Hate speech
Here it is important to mention the Recommendation of the Committee of
Ministers on hate speech (adopted on 30 October 1997), with Annexes which
especially express the principles related to hate speech and particularly to
hate speech in the media. In order to apply these principles, the expression
hate speech entails all forms of expression which spread, stir, encourage, or
justify racial hatred, xenophobia, anti-Semitism, or other types of hatred based
on intolerance, including the intolerance expressed in the form of aggressive
nationalism and ethnocentrism, discrimination, and hostility towards
minorities, migrants, and people of immigrant origin. Hence, member states
are recommended to establish and maintain a full legal framework containing
the decrees of civil, criminal and managing rights related to hate speech. This
framework enables state and judiciary authorities to comply the respect of
freedom with the respect of human dignity and the protection of reputation or
rights of the others in all cases.
Basically, the protection provided by Article 19 refers to every expression,
independently of the context, which is spread by any individual, group, or type
of media. The only restriction on the content applied even by the Commission on
Human Rights referred to spreading the ideas which promoted Nazistic ideology,
neglected the Holocaust, and invited to hatred and racial discrimination. On this
occasion, the Commission cited Article 17 of the Convention (which stipulates
the ban of abuse of rights states: Nothing in this Convention may be interpreted
as implying for any State, group or person any right to engage in any activity or
perform any act aimed at the destruction on any of the rights and freedoms set
forth herein or at their limitation to a greater extent than is provided for in the
Convention) and decided that freedom of expression cannot be used to lead
towards the destruction of rights and freedoms guaranteed by this Convention.
Such decision applies the theory of paradox of tolerance: absolute tolerance can
lead to tolerating the ideas promoting intolerance that could finally destroy the
tolerance itself.
States are always obligated to justify every disturbance of any type of expression.
The characteristic of Article 10 is the protection of expression which carries the risk
of endangering or the expression which in fact endangers the interests of others.
Usually, there is a low risk of states interfering in the opinion of the majority or of
big groups. This is precisely why the protection provided by Article 10 also covers
the information and opinion expressed by smaller groups or even by one person,
50
Freedom of the press

Even though Article 10 of the Convention does not explicitly mention either
freedom of the press or journalistic freedoms, the practice of European Court
obviously shows that, in the Convention, the phrase freedom of expression also
covers freedom of the press as one of its most significant elements. Freedom
of expression includes negative freedom of not speaking, too. Article 10 does
not protect the right to vote. The right to vote is considered to be a part of the
obligation of a state to hold free elections in reasonable time periods, by secret
voting under the conditions that ensure the free expression of opinion of the
people when electing legislative bodies. Although it concluded that access to
information is not included in the protection provided by Article 10, the Court
decided that other decrees of the Convention can protect this right under
certain circumstances.
It is extremely important for every restriction, limitation, or any type of interference with the freedom of expression to be applied only on a specific realization of this freedom. When it comes to these subjects, the Court examines and
decides whether there is a disturbance and it considers the restrictive effect of
a certain measure. For example, endangering someones reputation must not
be considered a criminal act or the base for civil proceedings in any situations.
Similarly, public expression which puts the authority of judicature at risk must
not be punished every time it appears. Therefore, the very content of the right
to freedom of expression always remains untouched.
51
even if this opinion can be shocking to the majority. The tolerance of individuals
opinion is an important part of any democratic political system.
Chapter 3
IN COURT PRACTICE
Mladen Srdi
In its decision making process, beside its judiciary practice in the interpretation
of the Convention, the European Court in Strasbourg pays attention to
local judiciary practices, including the American one, which gives a strong
protection to freedom of expression. However, local decisions independently
of jurisdiction have a limited influence on an international body, such as this
Court, which mostly applies and interprets one international agreement. In some
cases, however, the Court cited the International Covenant on Civil and Political
Rights1 or other international documents protecting the freedom of expression.
Generally, it can be said that the jurisprudence of the Court developed from a
rather conservative approach, which gives more authorization to states, to a
more liberal approach, which provides states with less discretional right when it
comes to the limitation of freedom of expression.
Guaranteeing freedom of expression is applied to the media in a particularly strong
manner. In almost every case related to the media, European Court emphasized
that the essential role of the press in one democratic societythe duty of which is
to deliver in accordance with its obligations and responsibilities information and
ideas referring to all questions of public interest. Not only is the task of the press to
deliver such information and ideas, but the public has the right to receive them, too.
Otherwise, the press would not be able to play its vital role of a public warden.2
One part of this standard of enabling lively debates on the topic of public interest
is also the fact that public employees and politicians should tolerate criticism
related to their work to a much higher degree than anyone else because this is
why they have been chosen in the first place.
FACTS AND OPINIONS

The European Court of Human Rights has established in its practice the hierarchy
of values protected by Article 10 of the Convention. Within this hierarcy there are
comments and debates on the questions of general public interest given and
The International Covenant on Civil and Political Rights (New York, 7 March, 1966), 660
U.N.T.S. 195. 5 I.L.M. 352 (1966), entered into force on 4 January 1976, http://www.
hrweb.org/legal/cpr.html (accessed 8 December 2011).
1
See: Council of Europe, Freedom of Expression in Europe: Case-law concerning Article

10 of the European Convention on Human Rights, Strasbourg: Council of Europe Publishing, 2007, http://www.echr.coe.int/NR/rdonlyres/BA2CB2C0-E837-4253-A1B55BC87D84AABE/0/DG2ENHRFILES182007.pdf (accessed19 May 2011).
2
55
MAIN STANDARDS OF THE PRACTICE OF EUROPEAN COURT
FREEDOM OF EXPRESSION IN COURT PRACTICE
led by public figures and media, especially in the domain of political expression,
the most protected form of freedom of expression. In that sense, associations or
individuals which are actively and voluntarily involved in public discussions have
to have a great level of tolerance when it comes to criticism. The European Court
almost always concluded that defamation proceedings involved violations of
the right to freedom of expression, that is, the defamation of high governmental
officials and public officials (Lingens against Austria3, 1986; Oberchlick against
Austria4, 1991)
In order to decide to which extent a certain expression is protected, the Court
considers the type of expression (e.g. political, artistic, commercial, etc.), the
means used to deliver the expression (in person, print media, television, etc.),
and the audience which received this expression (e.g. a certain group, adults,
children). The European Court emphasizes that the obligation of media
overcomes a simple reporting of the facts and that their duty is to interpret facts
and events with the goal of informing the public and contributing to debates on
the questions of public importance.
One of the questions most often repeated in Strasbourg, when applying the
standards about defamation, is the one of making the difference between facts
and opinions. The standpoint of the Court is that the statements of opinions
(value judgments) have to differ from statements about facts. This difference is
very important: facts can be proved, whereas opinions cannot.
The European Court provides a high degree of protection for delivering
opinions, particularly when it comes to the questions of public interest, but
local courts in Europe have had doubts about making a difference between
statements about facts and opinions for a long time. There is a long list of
cases in the European Court when local courts incorrectly treated allegedly
defamation publications as statements of facts. Also, the Court is very cautious
when it comes to sanctioning every statement which is not fully correct. Even
the best journalists make mistakes, so that, if there were pushments for every
unintentional statement, public interest of receiving timely information would
be significantly endangered.
This issue deserves a full attention as it is one of the most important ones in the
applications of the Law on the Protection against Defamation in both entities of
B-H. This will be elaborated in chapter 5.
Belgrade Center for Human Rights, Charging a journalist of the defamation of Austrian Federal Chancellor. Lingens Case (1986), http://www.bgcentar.org.rs/index.
php?option=com_content&view=article&id=662:lingens-protiv-austrije&catid=83
(accessed 17 May 2011).
3
Oberschlick v. Austria (no. 2) (47/1996/666/852), 1 July 1997, http://www.hrcr.org/safrica/expression/oberschlick_austria.html (accessed 17 May 2011).
4
56
The European Court believes that

the adequate balance between
the right to freedom of expression
and the right to protection of
reputation has to protect those who
reasonably acted when publishing
statements about the questions of
public interest while enabling the
prosecutors to sue those who did
not do so, which could also be called the defense of reasonable publishing. The
media acting in accordance with acknowledged professional standards should
pass the test of reasonability in any case. The European Court confirmed this in
the case of Troms and Stensaas against Norway5, by stating that press should
be allowed to publish stories of public interest under the condition to act with
good intentions in order to get correct and reliable information in accordance with
the ethics of journalism. This is crucial for the test of responsible journalism.
Namely, only the journalists who publish with good intentions and in line with
professional ethics should be allowed to rely on this.
European Court emphasizes that the
obligation of media overcomes a simple reporting on the facts and that their
duty is to interpret facts and events
with a goal of informing the public and
contributing to debates on the questions of public importance.
Furthermore, the journalists who are charged with defamation have to have the
right of defense of responsible journalism. Under certain circumstances even
the incorrect defamatory statements about facts have to be protected. The rule
of firm responsibility for all incorrect statements is particularly unfair for the
media that are obligated to fulfill the right of public to be informed of issues of
public importance and that often cannot wait to be sure that every fact given is
correct before it is published or broadcast.
PROPORTIONAL DAMAGE
One of the standards established by the Court refers to the measures which can
be imposed when it is established that a journalist is responsible for defamatory
statements: any measure that has been passed should be strictly proportional.
Unreasonably severe sanctions or too high compensations for the damage, even
in the case of statements proved to be defamatory, will represent a violation of
guaranteeing of freedom of expression. Two measures are particularly relevant
in any discussion on this matter: imprisonment and high fines or compensations.
The European Court has never supported any actual imprisonment. Other
Troms and Stensaas v. Norway (21980/93), 20 May 1999, http://sim.law.uu.nl/SIM/
CaseLaw/hof.nsf/2422ec00f1ace923c1256681002b47f1/887a2420f72746ebc125678
3003c2213?OpenDocument (accessed 17 May 2011).
5
57
RIGHT TO PROTECTION OF REPUTATION AND RESPONSIBLE JOURNALISM
international bodies have also often emphasized the illegitimacy of the Law
on Defamation that stipulates imprisonment as a punitive measure. While
the European Court has never even made a decision whether prescribing
these felonies is connected with the right to freedom of expression or not, it
emphasized on several occasions that states are supposed to use punitive
measures to limit the right to speech only as a last resort and that punitive
sanctions should be applied only for preserving the public order and not in
private conflicts, as most cases of defamation are.
Furthermore, in order to consider the limitations of freedom of expression
justifiable, they have to be absolutely necessary, which means that there is
no other milder solution. Persecuting and charging can be considered as
proportional only in exceptional circumstances of serious attacks on the right of
an individual. For example, the recent decision on the case of Gavrilovis against
Moldova6, European Court stated: The Court reminds that conducting criminal
punitive measures against someone who enjoys the right to freedom of expression
can be compatible to Article 10only in exceptional circumstances, especially
when other basic rights are seriously violated.
Similarly, in the case of Bodroi and Vujin against Serbia7, the Court established
that: Resorting to persecution against journalists for alleged insults which triggered
off the questions of public debates, as it is in this case, should be considered as adequate
only in exceptional circumstances which include the most serious attack on the rights.
The European Court of Human Rights does not support imprisonment as
a punitive measure for defamation, except for the case of hate speech or
encouraging the violence (cases of Cumpana and Mazare against Romania8,
2004, Dlugolecki against Poland9, 2009).
In that sense, beside the issue of the legitimacy of judiciary protection which
has already been given, it should be highlighted that, on several occasions, the
European Court of Human Rights indicated that passing criminal sanctions if
other alternatives (such as legal, civil proceedings) are available means violating
Article 10 of the Convention.
Civil compensations can also be a reason for concerns when it comes to freedom
Gavrilovis v. Moldova (25464/05), 15 December 2009, http://www.ncbi.nlm.nih.gov/
pubmed/20443444 (accessed 17 May 2011).
6
Bodroi and Vujin v. Serbia (38435/95), 23 June 2009, http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/2422ec00f1ace923c1256681002b47f1/94821f99c573f9b9c12575e1003

2310e?OpenDocument (accessed 17 May 2011).
7
Cumpn and Mazre v. Romania (33348/96 ), 17 December 2004, www.coehelp.org/

mod/resource/view.php?inpopup=true&id=445 (accessed 17 May 2011).
8
Dlugolecki v. Poland (23806/03), 24 February 2009, http://vlex.com/vid/case-dlugolecki-poland-52147065 (accessed 17 May 2011).

9
58
But even a relatively small amount of compensation can increase concerns over
freedom of expression if it seriously affects the defendant. For example, in the
case of Steel and Morris against the United Kingdom11, the European Court
emphasized that even though the compensations in this case were relatively
small (it was about tens and not hundreds of thousands of pounds), they were
still very serious in comparison with modest incomes and budget of the two
petitioners, leading to the violation of the right to freedom of expression.
PROTECTION OF CONFIDENTIAL SOURCES

A very important component of freedom of expression is the protection of
journalistic sources. The most significant judgment of the European Court
relevant for this aspect was passed in Goodwin vs. UK12 in 1996.
Goodwin, a journalist of the magazine The Engineer, received from his sources
over the phone information about company Tetra Ltd. The source said that
the company was about to get a huge credit although it already had financial
problems. The information was neither requested nor paid for. While writing an
article on this topic, the journalist called the company and asked them to comment
on the matter. The information came from a document labeled confidential
and the company discovered that documents from the administration were
missing. After the journalist called, the company asked the European Court to
issue a prohibition and stop Mr. Goodwin to publish the text, claiming that if
the information reached the public, its economic and financial interests would
be seriously endangered. The prohibition was issued and the company sent a
copy to all bigger daily newspapers. After that, the company asked the Court to
demand the journalist to reveal the name of his source, arguing that this would
help the company find out who the dishonest worker was and start a procedure.
The journalist kept refusing the requirements of the Court and he did not reveal his
source. He was fined on the basis of obstruction of justice. He submitted a petition
Tolstoy Miloslavsky v. United Kingdom (18139/91), 13 July 1995, http://sim.law.uu.nl/
SIM/CaseLaw/hof.nsf/1d4d0dd240bfee7ec12568490035df05/8b6bd2df00f0abb1c12
56640004c2d62?OpenDocument (accessed 17 May 2011).
10
Steel and Morris v. United Kingdom (68416/01), 15 February 2005, http://www.uniset.

ca/other/cs5/echr_mcdonalds.html (accessed 22 March 2012).
11
Goodwin v. United Kingdom (28957/95), 11 July 2002, http://www.5rb.com/case/

Goodwin-v-United-Kingdom (accessed 22 March 2012).
12
59
of expression. In the case of Tolstoy Miloslavsky against the United Kingdom10

(this will be elaborated later on), the European Court clearly stated that the
compensation for defamation of more than million pounds is completely
disproportional and that it violates the right to freedom of expression.
before the European Court and claimed that the Court asking him to reveal the
source, as well as fining because of not doing so was a violation of his right to
freedom of expression. The Court accepted that the interference was directed
towards the protection of rights of the others (rights of the company) and it kept
examining whether the interference was necessary in a democratic society.
The Court recalls that freedom of expression constitutes one of the essential
foundations of a democratic society and that the safeguards to be afforded to the
press are of particular importance. Protection of journalistic sources is one of the
basic conditions for press freedom, as is reflected in the laws and the professional
codes of conduct in a number of Contracting States and is affirmed in several
international instruments on journalistic freedoms () Without such protection,
the sources would not be providing the press with help in informing about the issues
of public interest. As a result, the vital role of the press as a public watchdog can
be jeopardized and the ability of press to provide correct and reliable information
can suffer negative consequences.13 Taking into consideration the importance of
journalistic sources for freedom of the press in a democratic society, the Court
stated that such measure could be compatible to Article 10 of the Convention
unless it was justified with the priority need in public interest.142When
elaborating on the purpose of revealing the source was to a great extent the
same as the one which was already achieved by the prohibition of publishing,
that is, that the distribution of confidential information about the financial
situation of the company was prevented, the Court stated that there is no
reasonable relationship of proportionality between the legitimate aim pursued by
the disclosure order and the means deployed to achieve that aim. The restriction
which the disclosure order entailed on the applicant journalists exercise of his
freedom of expression cannot therefore be regarded as having been necessary in
a democratic society for the protection of Tetras rightsAccordingly, the Court
concludes that both the order requiring the applicant to reveal his source and the
fine imposed upon him for having refused to do so gave rise to a violation of his right
to freedom of expression.153
After the judgment in Goodwin on 8 March 2000, the Committee of Ministers of
the Council of Europe adopted the Resolution Res (2000) 716, about the right of
journalists to not reveal their sources of information. In line with the decision
of the Court in Goodwin and the Resolution, in 2000, domestic courts should
4
13
Ibid.
The Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4
November 1950), Article 10, entered into force 3 September 1953.
14
15
Supra note 12
Council of Europe, Resolution Res (2000) 7 of the Committee of Ministers of member states
on rights of journalists not to reveal their sources (21 September 2000), http://conventions.
coe.int/Treaty/EN/partialagr/html/Observ20007.htm (accessed 18 July 2011).
16
60
Therefore, according to the interpretation of the European Court, journalistic

freedom includes the right of journalists to protect the anonymity of their
sources, even if this right is not explicitly stated in Article 10 of European
Convention. However, this has been done in Article 9 of the Law of Protection
against Defamation of FB-H and Article 10 of the Law of Protection against
Defamation of RS, which prescribe that journalists and other private persons
which are regularly or professionally involved in journalistic search, or in
receiving or presenting the information to the public, who received information
from a confidential source, have the right of not revealing the identity of this
source. To this right it was added that the right of not revealing the identity of a
confidential source refers to every other private person involved, in accordance
with these laws and who, as a result of their professional relationship with a
journalist, finds out the identity of the confidential source of information.
Therefore, it can be concluded that in this regard, our laws are one step ahead
of the decrees of the Convention or even of the court practice of the European
Court. This is where we have to remember that the Convention prescribes
the minimum of rights and freedoms which one state has to guarantee to its
citizens and does not prevent this state from expanding the domain of rights
and freedoms by its legislation in accordance with its social progress.
Due to such precise and explicitly defined right of journalists to not reveal
their sources, this question is not disputable in practice, although it has to be
mentioned that the circumstance of them having the freedom of not revealing
their sources of information is seen as a way for journalists to avoid a possible
defamation suit. Because of that, it often happens in court that journalists state
that they received the information from a confidential source that cannot be
revealed and that they did not verify whether the information obtained was true
or false. It is interesting to see that the legal system of Great Britain provides
journalists with freedom from liability for defamation in case they reveal their
confidential source of disputable information and this is when the source itself is
the liable one. Of course, no professional journalist has so far used this possibility
that would probably lead to the end of his or her career in journalism.
In countries that have not adopted the protection of journalistic sources, courts
61
include decrees protecting journalistic sources in domestic laws. The sources can
be revealed only if this is a priority need or a vital interest. However, even such
needs or interests have to be balanced with the needs of protecting journalistic
sources as a part of the protection of freedom of expression. According to the
Recommendation, journalists have to be informed about their right of not
revealing the source before such charges are made. Court discussions following
or interrupting the communication should not be allowed if their goal is to
reveal journalistic sources.
have to do this as the part of European law such as the decision in Goodwin
subject and as the part of internationally acknowledged legal principles.
Domestic courts have to be the guardians of freedom of expression rights,
including the protection of journalistic sources in all situations, both when
journalists are asked to come before the court both as defendants and when
they come as witnesses. In these cases, domestic courts have to respect only
the principle of proportionality and the role of the media in democratic society.
62
Sevima Sali-Terzi
Freedom of expression, protected by Article 10 of the European Convention for

the Protection of Human Rights and Fundamental Freedoms, is a constitutional
right in Bosnia and Herzegovina. According to Article II/6 of the Constitution
of Bosnia and Herzegovina, Bosnia and Herzegovina, and all courts, agencies,
governmental organs, and instrumentalities operated by or within the Entities
have to apply human rights guaranteed by Article II/2. This means that all courts
in Bosnia and Herzegovina are obligated to respect and apply the standards
of protection of this right established by the European Court of Human Rights
when deciding on cases related to freedom of expression.
The Constitutional Court of Bosnia and Herzegovina is the final authority for
examining a possible violation of freedom of expression and, based on Article
VI/3.b) of the Constitution of Bosnia and Herzegovina, it shall also have appellate
jurisdiction over issues under this Constitution arising out of a judgment of any other
court in Bosnia and Herzegovina.1
Issues with respecting freedom of expression in the practice of the Constitutional
Court of Bosnia and Herzegovina have mainly occurred in cases where regular
courts were applying the Law on the Protection against Defamation. By passing
these laws, defamation in Bosnia and Herzegovina has been decriminalized,
excluded from criminal law domain, and placed into the domain of civil law. In
the first two years after these laws were passed, the number of charges related
to defamation against journalists increased three times compared to two or
three years before the laws were passed, and requests for compensation for
damage reached millions.2 This increase of charges on defamation caused more
appeals referring to the protection of freedom of expression to be received by
the Constitutional Court between 2004 and 2007. Today, there are a lot less
appeals of this kind.
Law on Protection against Defamation of FB-H (Sarajevo, 2002), Official Gazette of FB-H
No. 59/02, entered into force in 2002; Law on Protection against Defamation of RS (Banja
Luka, July 2001), Official Gazette of RS No. 37/01, entered into force on 1 August 2001.
1
See: Mehmed Halilovi, Application of new Law on Protection against Defamation in B-H:
there was not much profit for journalists, 24 March 2005, http://www.media.ba/mcsonline/bs/tekst/primjena-novog-zakona-o-zastiti-od-klevete-u-bih-novinari-nisu-previse-profitirali (accessed 28 September 2011).
2
63
EUROPEAN CONVENTION IN THE PRACTICE OF THE CONSTITUTIONAL COURT OF B-H
EU R O P EAN CON V EN TION IN THE PR AC TIC E O F THE

CO NS T IT U T ION AL COU R T OF B -H
GENERAL PRINCIPLES OF THE PROTECTION OF FREEDOM OF EXPRESSION

APPLIED BY THE CONSTITUTIONAL COURT OF B-H
Following the practice of the European Court of Human Rights, in cases
referring to possible violations of freedom of expression, the Constitutional
Court consistently applies the general principles of the protection of freedom of
expression stipulated in Article 10 of the European Convention in the very way
in which European Court of Human Rights interprets them.
According to these general principles, freedom of expression is the essence of
a democratic society and it is one of the basic conditions for societal progress,
as well as for the progress of every individual. Along with the limitations given
in paragraph 2 of Article 10 of European Convention, this freedom is applicable
not only to information or ideas that are favorably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend, shock, or
disturb, which are the demands of pluralism, tolerance, and broadmindedness,
necessary for a truly democratic society.3
This freedom is still not absolute and it can be limited based on circumstances
and conditions given in paragraph 2 of Article 10 of the European Convention,
according to which public authorities can interfere in the freedom of expression.
Therefore, the key role and task of any independent jurisdiction in every
particular case is to clearly determine the boundary between justified and
necessary, and unjustified and unnecessary limitations which confirm that one
principle is in fact a rule or negate it as a pure declaration.
The general rule of the protection of freedom of expression is also conducting
the test of necessity in democratic society. When deciding on whether Article
10 of the European Convention has been violated, this test requires determining
whether the interference of local authorities with this freedom corresponds to
an urgent social need, whether it is proportional to the legitimate goal which
is supposed to be achieved, and whether the reasons and justifications for such
interference provided by public organs are relevant and sufficient. Therefore,
the application of this test should establish whether local authorities applied
the standards in line with principles given in Article 10 of European Convention,
as well as whether local authorities based their decisions on an acceptable
analysis of relevant facts. Also, this test requires establishing whether there
is a fair balance in the protection of two values guaranteed by the European
Convention which can be contrary to one another: on one hand, freedom of
expression in Article 10 of European Convention, and on the other, the right of
persons attacked in a text to protect their reputation protected by Article 8 of
Selist v. Finland (56767/00), paragraph 46, 16 November 2004, http://cmiskp.
echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).
3
64
Furthermore, the general principle is that there is a clear distinction between

information (fact) and opinion (value judgment) because the existence of
the fact can be proven whereas there is no proof for the truth based on value
judgment.5 On the other hand, the European Court of Human Rights reiterates
that the role of press in a democratic society is very important. Although it must
not cross certain lines, especially having in mind the protection of reputation and
the right of others and the need to prevent publishing confidential information,
the duty of the press is to provide and publish the information and ideas on
all issues of public interest, including the information referring to activities of
public officials. Not only is the duty of the press to disseminate such information
and ideas, there is also the right of the public is to receive such information.
Article 10 of the European Convention protects the essence of information and
ideas that are stated, as well as the form in which they appear and journalists
are at liberty to include a certain degree of exaggeration or even provocation
as well.6
Article 10 of the European Convention does not ensure unlimited freedom of
expression even when it comes to press reporting on serious issues of public
interest. According to paragraph 2 of Article 10 of the European Convention,
enjoying freedom of expression includes duties and obligations applied to
the press, too, and they become particularly significant when the reputation of
private persons is attacked and when the rights of the others are at a lower
level. Therefore, the Court take into consideration whether journalists act bona
fide when making efforts to provide accurate and reliable information to the
public in accordance with journalism ethics.7
This means that the defense based on an honest intention is a type of
substitution for proving the truthfulness. When journalists have a justified goal,
if the issues are important for the public and if reasonable efforts for confirming
the facts have been made, the media will not be responsible even if the facts
turn out to be false.
Furthermore, the European Court of Human Rights established the principle
according to which the compensation for damage in a civil lawsuit concerning
defamation is a clear interference in exercising the right to freedom of expression.
Chauvy et al. v. France (64915/01), paragraph 70, 29 June 2004, http://cmiskp.
4
Lingens v. Austria(9815/82), paragraph 46, 8 July1986, http://cmiskp.echr.coe.

int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).
5
Hrico v. Slovakia (49418/99), paragraph 40, 2004, http://cmiskp.echr.coe.int/

tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).
6
Supra note 3, paragraph 54.

65
European Convention within the right to private life.4
Namely, according to paragraph 2, Article 10 of the European Convention,

authorities can interfere into the realization of freedom of expression only if
three cumulative conditions are fulfilled: a) that the interference into freedom
of expression is prescribed by law, b) that its goal is to protect one or several
stipulated interests or values, and c) that it is necessary in a democratic society.
The courts are to follow these three conditions when considering and deciding
on cases related to freedom of expression.
Having in mind these conditions and the given principle, the European Court
concluded that the amount of compensation can lead to the violation of Article
10 of the European Convention if it is not reasonably proportional to the
damage caused to someones reputation.8 Also, when dealing with numerous
cases referring to defamation, the European Court especially emphasizes the
role of media as a public watchdog and the contribution of media to the correct
functioning of democracy. To that end, the European Court implicitly considers
the criteria of influence by relying on the fact that certain limitations of freedom
of expression can have discouraging effect. In that sense, the European Court
points out that, according to the obligations listed in Article 8 of the European
Convention, member states of the Council of Europe can or even have to regulate
freedom of expression in order to ensure adequate protection of the reputation
of individuals, but this must not cause a discouraging effect on the media.9 With
this in mind, the European Court will determine whether there was a violation of
Article 10 of the European Convention if the measures taken in order to protect
reputation of one person are obviously disproportional, which is, for example,
the case when journalists are sentenced of imprisonment for defamation or
prohibited to work in journalism, or even when there is a possibility of having
journalists being sentenced in this manner.10
In the end, there is little space within paragraph 2, Article 10 of the European
Convention for the limitations of political speech or debates on issues of public
interest. Moreover, the boundaries of acceptable criticism are wider when
it comes to public figures such as politicians, than when it comes to private
persons. Unlike private persons, public figures are aware that they are inevitably
exposed to public judgment and their words and acts to a closer examination of
public hence they have to express a greater level of tolerance, too.11
Tolstoy Miloslavsky v. United Kingdom (18139/91), 13 July 1995, http://sim.law.uu.nl/
8
Selist v. Finland, Supra note 3, paragraph 53.
Cumpn and Mazre v. Romania (33348/96 ), 17 December 2004, paragraph 113-114,

www.coehelp.org/mod/resource/view.php?inpopup=true&id=445 (accessed 17 May
2011).
10
11
See: Hrico v. Slovakia, Supra note 6, 2004, paragraph 40.
66
Satire and value judgments

1. Decision No. 787/0413
The applicants complained that there was a violation of Article 10 of the
European Convention as courts treated disputable texts of satirical nature as
defamation and obligated the applicants to provide compensation for nonmaterial damage to the plaintiffs.
The Constitutional Court determined that in this case, decisions of courts
violated the right of Article 10 of the European Convention, which was explained
in the following way:
expressions in the disputable text are entirely value judgments, that is, the opinion
of applicants on plaintiffs and relations in daily newspapers in which they work,
hence they do not contain any factual statements which can be proved true or false.
Statement:Aida Deliprefers military staff whereas Indira ati likes police officers
more. However, both of them are useful for their boss Radoni, who sometimes
awards them with a swim in a pool (together), can be seen only as a value judgment
on plaintiffs and relations in daily newspapers in which they work. If it was the
opposite, the question which would certainly rise would be: in which way is it even
possible to prove that anyone prefers soldiers or police officers due to which they
are useful for the person they work for, who then gives them a joined swim in a pool
as an award? Such statements cannot be proven to be true or false because they do
not contain the minimum of facts that could be verified by objective proofs.
Beside this, statements such as:
Thanks to strong connections of Deli with Federal Ministry of Defense, Radoni
can be certain that his building will remain untouched even though it was built on an
fallout shelter, while speed bumps from Cantonal Ministry of Internal Affairs take a
firm position regarding Indira ati by guaranteeing that no one would take the cars
packed up in front of Avaz building can all be seen only as value judgments and not
facts which could be proven. Namely, expressions that have been mentioned do not
state any facts related to the plaintiffs except that it is said they had connections in
certain public organs. In the specific case, apart from stating that the plaintiffs have
connections there is nothing that could possibly be examined from the aspect of
charges of defamation. It is written that Radoni can be certain that his building
Cases were chosen on the basis of the issue they dealt with and how interesting they
were.
12
Decision of Constitutional Court of B-H (AP 787/04), 20 December 2005, Official

Gazette of B-H, No. 41/06, http://www.ustavnisud.ba/bos/odluke/povuci_html.
php?pid=28220 (accessed 22 March 2012).
13
67
MAIN DECISIONS OF THE CONSTITUTIONAL COURT12
will remain untouched even though it was built on a fallout shelter, and that no
one would take away the cars packed up in front of Avaz building. However, there
is the question of what the facts that should be established in the context of charges
of defamation are. The disputable text does not mention that the plaintiffs did
anything illegal hence there is no basis for statements of regular courts such as facts
presented in this way suggest that the plaintiffs with a help of their contacts can
provide a good treatment of a third person for which it can be assumed that it is not
in line with valid laws. Based on the quotes of the disputable text, there cannot be
assumptions that the plaintiffs allegedly do something illegal and thus it cannot be
claimed that the applicants are liable for defamation.
The abovementioned shows that regular courts in this specific case did not make
a distinction between information (fact) and opinion (value judgment). On the
contrary, value judgments in the text were interpreted as facts hence regular courts
determined that there was a liability of applicants for defamation. Regular courts
highlighted that disputable expressions were negative value judgments about
the plaintiff which attacked her honor and that they expressed negative values of
her personality. In the sense of sanctioning what was written in this specific case,
such conclusions were absolutely opposite to the standards prescribed by Article
10 of European Convention and by Article 7, paragraph 1, point a) of the Law on
Protection against Defamation, considering the fact that there is no liability for
defamation if someone expresses their opinion or gives a value judgment about
someone. If words of the disputable text are unpleasant for the plaintiffs, this still
cannot limit the right to freedom of expression of applicants given by standards of
Article 10 of European Convention and Article 2, paragraph 1, point b) of the Law
on Protection against Defamation according to which the applicants have the right
to expressions which can offend, embitter or disturb, especially when it is taken into
account that they wrote about the issues of public interest, that is, about relations in
one daily newspaper which, without any doubt, has a great influence on the matters
of political or public interest.
Beside this, the Constitutional Court emphasized that regular courts neglected
truly satirical, that is, humorous characteristics of the disputable text and that they
did not keep in mind the provisions of Article 5 of the Declaration on Freedom
of Political Debate in the Media, which, when it comes to this type of texts, allow
a greater extent of exaggeration or even provocation. It is mentioned that this
declaration is not binding, however, Bosnia and Herzegovina, as a member of
the Council of Europe cannot ignore recommendations related to freedom of
the media, that is, the freedom of political debate in the media which has been
passed by the Council of Ministers of the Council of Europe.14
14
Ibid., p. 45-48.
68
2. Case No. AP 1005/0415

The applicants complained to the Constitutional Court that decisions of the
Sarajevo Cantonal Court and the Supreme Court of the Federation of B-H violated
their right to freedom of expression because these decisions based on the Law on
Protection against Defamation obligated them to provide compensation for the
plaintiff. Namely, the charges against the applicants were pressed by the former
cantonal minister for industry, energy and mining because the political program
60 minutes stated that, due to his personal interest, the minister refused the
offer of 20,000,000 BAM for starting the work at Polihem, that his arbitrariness
is reflected best in the example of limestone mine Wreath(Vijenac) when he
decided, that is, assessed that the mine cost almost 20,000,000 BAM, that he
refused the offer of 5,000,000 BAM and accepted the one of selling the mine for
1,000,000 BAM.
The plaintiff stated that the applicants did not take any statement from him, nor
did they respond to numerous requests for the correction of false expression
and he asked the court to make it obligatory for them to pay 50,000 BAM as a
compensation of non-pecuniary damage and to make the decision public. The
Cantonal Court established that there was defamation in this specific case and
decided to award the plaintiff 5,000 BAM in damage compensation. On the basis
of the appeal, the Supreme Court confirmed the position of the Cantonal Court
that there was defamation, but increased the compensation for damage 10,000
BAM.
When deciding on the appeal, the Constitutional Court established that the
applicants stated facts about the plaintiff which were found to be false by the
courts, and that the two applicants were aware of the falsity of the facts, as they
stated before the Cantonal Court. Moreover, the Constitutional Court stated that
the courts determined that the plaintiff reacted and asked the opportunity to
use arguments to confute stated false facts, that is, to mitigate the damage but
that the applicants did not met the request of the plaintiff in an adequate way.16
Based on the abovementioned, the Constitutional Court concluded that courts
made a necessary distinction between facts and opinions. By applying the test
of necessity in a democratic society, the Constitutional Court also concluded:
courts took into consideration the fact that when the disputable report was
published, the plaintiff was a public figure and related to this, they took into
Decision of Constitutional Court of B-H (AP 1005/04), 2 December 2005, Official Gazette of B-H, No.45/06, http://www.ustavnisud.ba/bos/odluke/povuci_html.
php?pid=28220 (accessed 22 March 2012).
15
16
Ibid., p.38.
69
Balance between freedom of media and right to reputation
consideration his obligation to tolerance. However, when estimating all

circumstances, they concluded that this case of stating false facts crossed the
allowed limit and the necessary tolerance of the plaintiff, that is, that there was
defamation and that damage was caused to the reputation of the plaintiff. The
Constitutional Court considers that, even though the existence of legitimate
goal can be accepted, when it comes to the essence of disputable report, as this
was the issue important for the public, there still was not a good intention of the
applicants. Also, reasonable efforts were not made in order to confirm these facts,
nor mitigate harmful consequences by enabling the plaintiff to confute false facts
that were stated, thus the applicants are liable for stating and conveying the false
expression. Namely, in this specific case, general interest which allows rising the
question on the situation in economy cannot be defended by stating false facts
which attack the reputation of the plaintiff and which can thus be seen as a
criticism aimed at the plaintiff which he is supposed to tolerate considering the
function he occupied at the time.
Therefore, according to the principle of proportionality, the disputed judgments
established the balance between the freedom of media and the rights of executive
authorities to reputation. Also, considering all the circumstances of this case, by
passing disputed judgments the courts determined that there was an urgent
social need requiring a specific limitation in realization of freedom of expression.
The Constitutional Court does not consider that it can be concluded that regular
courts crossed the allowed degree of discretion of the court.17
Proving that damage occurred
3. Case No. AP 1203/0518
In this case, the applicant (MM Company), made an appeal to the Constitutional
Court of B-H against the decisions of Sarajevo Cantonal Court and the Supreme
Court of FB-H which provided the plaintiffs (Avaz and Fahrudin Radoni)
with a compensation for non-pecuniary damage caused by defamation. Court
decisions stated that the applicant, as a publisher of San magazine, is responsible
for this magazine publishing on the first page, a photo of the second plaintiff
beside which it was written: Radoni made a fortune out of the donations
for children of Srebrenica. This was an announcement for the text on page 3
where there was an alleged letter of Civic association Mothers of Srebrenica
and Podrinje, as well as the announcement of the text on the same page with a
title Investigation on citizenship and place of residence, stating that there was a
17
Ibid., p.39.
Decision of Constitutional Court of B-H (AP 1203/05), 27 June 2006, Official Gazette of
B-H No.7/07,
http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pid=28220 (accessed 22 March 2012).
18
70
Cantonal Court completely repudiated the charges related to Avaz whereas

the appeal related to the second plaintiff, Radoni, was adopted and it made
the applicant obligated to pay 6.000 KM as a compensation for non-pecuniary
damage. Cantonal Court concluded that there was defamation in this specific
case because the disputable article quoted the letter of Ibran Mustafi, the
president of Managing Board of Civic association Mothers of Srebrenica and
Podrinje to the high representative in B-H. This letter stated that the owner of
Avaz was one of the last relapses of Miloevis regime in B-H, that the main
capital on which Avaz was founded was taken from the donations to orphans
in Srebrenica and Podrinje and that the owner of Avaz was one of the main
criminals who became rich in this way and now he is saying terrible things about
the people without whom the lives of children without parents would have
been uncertain. Furthermore, it stated that, before the aggression against RB-H,
the owner of Avaz came into the city having less than the victims of Srebrenica
whereas today the residence of American ambassador is his mansion.
The Supreme Court partially upheld the appeal, but lowered the amount of the
compensation for damage to 3,000BAM.
When deciding on the appeal, the Supreme Court concluded that the repudiated
judgments violated applicants right to freedom of expression and the right
to fair trial hence both judgments were repudiated and returned the case to
the Cantonal Court where there would be a new trial. The Constitutional Court
noticed that in the exposition of such decision the Cantonal Court decided on
the appeal related to the compensation for damage from defamation in an
alleged letter where the second plaintiff is mentioned in a negative context
related to donations to Srebrenica and in the text stating that there was an
investigation on the second plaintiff related to the way in which he obtained
citizenship and registered his company. Therefore, the Constitutional Court
stated that the courts concluded that these are the cases of defamation as there
are statements which can be proved true or false implying that these are facts
and not value judgments. However, such conclusion was not entirely accepted
by the Constitutional Court and the exposition states the following:
The procedure before Cantonal Court established that there was no investigation on
the second plaintiff regarding his suspiciously obtained citizenship and registration
of his company which was neither denied by the applicant nor was there any
evidence of establishing the veracity of given facts. The applicant justified publishing
the cited information by stating that the data was received from a confidential
source which does not have to be revealed, according to Article 9 of the Law on
Protection against Defamation and that there was no intention of publishing false
71
thorough investigation about the way in which the second defendant obtained
the citizenship of Bosnia and Herzegovina.
facts. Instead, according to the applicant, it was a comment on the activities of

authorities. The procedure of first instance established that the applicant did not
have any contact with the prosecution in order to possibly get their opinion or verify
the information that was published. Therefore, the Constitutional Court considers
that it is undisputable that this part of the published information referring to the
second plaintiff conveyed the facts that were proved to be false by regular courts,
and that there was no value judgment hence the conclusions of regular courts were
correct.
However, the Constitutional Court considers that the conclusion of regular courts
is disputable, as it states that there was defamation in one part of the published
text that cited the letter of Ibran Mustafi, that is, in the title of this text saying that
the second plaintiff made a fortune from the donations for Srebrenica. Regular
courts concluded that the applicant is liable for causing damage to the second
plaintiff by conveying the letter with an explanation that such quote was not
reasonable based on paragraph 1, point c) of Article 7 of the Law on Protection
against Defamation, and also that the procedure determined that the second
plaintiff could not make a fortune from donations to Srebrenica. Contrary to
the conclusion of regular courts, the Constitutional Court states that the given
information cannot be seen as a fact which can be proved true or false in the
procedure. Instead, these are value judgments, that is, conveying value judgments.
Therefore, the Constitutional Court considers that paragraph 1, point c) of Article
7 of the Law on Protection against Defamation should not have been in the
applicants case as the application of this Article is possible only when false facts
are stated and not someones value judgments.
[...] in this specific case, regular courts did not make a proper distinction between
value judgments and facts in relation to one part of published information.
Although regular courts generally established that there was defamation and they
did not decide on liability for damage in relation to each published information
separately, they did not make a proper distinction between value judgments and
facts which could later on affect the decisions on determining the amount of
damage as the gravity of consequences for someones reputation depend on the
amount of defamation. Related to this, the Constitutional Court again emphasizes
the principle to which it was already indicated in this decision, according to
which the amount of compensation for damage has to be proportional to the
damage caused to someones reputation. Considering the abovementioned,
the Constitutional Court states that regular courts, according to the principle
of proportionality, did not establish a proper balance between freedom of the
media and the right of the second plaintiff to reputation. The Constitutional Court
believes that in this way regular courts crossed the permitted degree of discretion
of the court.19
19
Ibid., p.51-53.
72
[...] regular courts established the principle which is contrary to valid legislative
norms. This was done by concluding that the existence of damage is assessed
according to the adopted social norms and criteria while it is not crucial whether
the person who suffered defamation subjectively feels harmed. It is important
that stating false facts could have caused damage to the reputation of the second
plaintiff which was undoubtedly established in the procedure. Namely, neither
the Law on Protection against Defamation nor the Law on Obligatory Relations
do not accept the concept of a possible damage as the criteria for establishing
whether the request for compensation for damage has basis or not. Article 200 of
the Law on Obligatory Relations states that the Court adjudges a fair pecuniary or
non-pecuniary compensation if it determines that the circumstances of the case,
and particularly the severity of pain and fear and their duration justify this.Also,
according to Article 6 of the Law on Protection against Defamation, every person
causing damage to the reputation of private or legal entity is liable for defamation.
Therefore, it can be concluded that regular courts are obligated to establish that
there actually was non-pecuniary damage and to adjudge compensation when
the circumstances of the case, and particularly the severity of pain and fear and
their duration justify this.20
Furthermore, the Constitutional Court stated that:
...passing a new Law on Criminal Procedure radically changed criminal procedure by
introducing the principle of discussion prescribed in Article 7 of the law on Criminal
procedure which replaced the principle of material truth. The interpretation of this
principle is the number of facts equals the amount of right and it implies that
the parties are obligated to provide all facts on which their requests are based.
Thus this principle should be applied in cases dealing with defamation, too. The
prosecution stated that there was damage, but they did not submit the evidence
for this nor did the Cantonal Court deduct the evidence related to this. Instead
the Court treated this fact as an established one and applied the principle of it
is sufficient to determine that expressing false facts could have caused damage
to the suffering party [...] By introducing the principle that damage is assumed
when it comes to defamation, regular courts basically have the possibility of not
deciding on the circumstances of the case and especially the gravity of pains and
their duration, which justifies adjudging a fair compensation in cash in the sense
20
Ibid., p. 31.
73
Related to the right to fair trial mentioned in paragraph 1, Article 6 of the

European Convention, the Constitutional Court stated that the very fact that
there was defamation of someone cannot lead to the conclusion that this
person has the right to receive compensation for damage. The Court explained
this fact in the following manner:
of Article 200 of the Law on Obligatory Relations.21

Such conclusion brought some confusion and controversies in the legal
community, especially because of the continuous issue of whether the injured
person has the right to compensation in all cases of defamation or whether
special evidence needs to be provided.
Discretion of the Court when deciding on damage
However, the practice which followed this decision showed that, in order
to clarify this question more thoroughly, the Constitutional Court analyzed
Article 10 of European Convention, and not Article 6 of European Convention,
as it will be seen in the following example.
4. Case AP 1067/0622
In this case, the applicant was the newspaper Slobodna Dalmacija (Free
Dalmatia). Two plaintiffs pressed charges regarding defamation and asked for
compensation for damage because the newspaper published an article entitled
Neboja Prpa and tycoons use bribery and promises to buy councilmen. The
disputable article stated that the councilwoman [the second plaintiff ] was
bought in the way that her father who was, according to Sablji, even before
known as a forger of savings books and stealer of collections of money from a
gas station in Kikinda, was enabled to open a shop and a legal office, in spite of
the fact that he graduated only from high school. Also, he was promised to get a
job at the land registry of the municipality regardless of the fact that he recently
got a loan from the Federal Employment Institute in the amount of 10 000BAM
which could solve his status of an unemployed person.
While gathering evidence, the Cantonal Court established that the first plaintiff
asked for a loan of 10,000BAM from the Federal Employment Institute, and that
he received approval for a loan of 8,000BAM. The receipt of this loan obligated
the plaintiff to employ two people. It was also established that, on 6 November
2003, he was in the position of a cadaster referent with a contract of unlimited
time that was annulled by an official letter on 17 June 2004, with an explanation
that it was illegal. Furthermore, the Cantonal Court said that the plaintiffs did
not take any measures to mitigate the damage caused by stating false facts, and
particularly that they did not make a request to the applicant in order to correct
statements in line with the provisions of Article 8 of the Law on Protection against
Defamation, and that they did not submit any evidence which would prove that
21
Ibid., p.33.
Decision on appeal, Applicant: Slobodna Dalmacija d.d Split. Constitutional Court of

B-H (AP 1067/06), 13 September 2007, http://www.ustavnisud.ba/bos/odluke/povuci_
html.php?pid=91813 (accessed 22 March 2012).
22
74
By analyzing the application of general principles of the protection of freedom

of expression in the specific case, the Constitutional Court adopted the
appeal and established that the judgment of the Supreme Court violated the
applicants right to freedom of expression. The Constitutional Court accepted
the conclusion of the Supreme Court that the statement published in the
disputable article saying that the first plaintiff has been a well-known forger
of savings books and stealer of collections of money from a gas station in
Kikinda, and that this part of the text attacks the reputation of the first plaintiff
as a private person, thus, according to general principles, duties and obligations
of the press are particularly important. Furthermore, the Constitutional Court
stated the following:
...the specific case deals with the compensation for non-pecuniary damage due to
the violation of reputation and honor representing values the protection of which
should not be questioned. When defining reputation and honor, the Constitutional
Court emphasizes that every individual is characterized by these categories that
represent the inseparable part of their personality. Honor is most often defined as a
collection of inherent values of every person as a human being and as a member of
a certain social community. On the other hand, reputation is often seen as the other
side of honor, that is, as an external honor that implies the respect which one person
has within one social community. Defined in this manner, honor and reputation are
two inseparable categories which can be observed from different aspects, even from
the aspect of their civil-legal protection.23
Furthermore, the Constitutional Court concluded that the Supreme Court
established that the applicant made defamation against the first plaintiff,
harming his non-pecuniary his reputation and honor. Therefore, the first
plaintiff suffered non-pecuniary damage. Related to this, the Constitutional
Court stated the following:
The subject of this damage were non-pecuniary goods related to moralpsychological personality of the injured person, hence the cash compensation for
23
Ibid., p.31.
75
they suffered any kind of non-pecuniary damage due to defamation, that is, the
degree and intensity of emotional distress caused by a possible violation of their
reputation and honor. Because of all this, the Cantonal Court fully rejected the
statement of claim. The Supreme Court acknowledged the appeal of the first
defendant and it made the applicant pay 2,000BAM to the defendant, whereas
the appeal of the second defendant was rejected, confirming the judgment of
the first instance that concluded that facts in the disputable article were not
proved true. Since this article published false facts, that is, defamation which
caused damage to the reputation of the first plaintiff, the latter has the right to
compensation.
non-pecuniary damage is not even a true compensation because it cannot bring

back the situation which existed before it was caused, thus its nature is not reparative.
On the contrary, a cash compensation for non-pecuniary damage is one type of
satisfaction given to the injured person as their non-pecuniary goods were harmed.
Estimating a cash compensation for non-pecuniary damage is a very delicate and
complicated procedure because there are no general norms considering different
moral-psychological constitution of every individual as well as considering other
circumstances in which the damage was caused and which harmed non-pecuniary
goods of the injured person. Therefore, it would be wrong to expect, as it does
Cantonal Court in the judgment of first instance, to suggest finding the evidence
which would exactly establish the intensity and duration of non-pecuniary damage
in order to determine the amount of damage caused.
However, even though there is the discretion of the court when determining the
amount of cash compensation for non-pecuniary damage, this discretion of the
court is not absolute, which is also mentioned in paragraph 2 of Article 200 of the
Law on Obligatory Relations according to which courts assess the importance
of harmed goods and the aim of compensation, while taking into the account
the circumstances of every individual case. From the perspective of Article 10 of
European Convention, the Constitutional Court notices that the court decision on
the amount of compensation for non-pecuniary damage can violate the principle of
proportionality between the extent of court interference into freedom of expression
and the importance of interest which is due to be fulfilled by limiting this freedom. [...]
Beside this, the Constitutional Court in its practice concluded that it was necessary for
courts, when determining whether there is a legal basis and the amount of damage
caused by defamation, to apply consistently the principles from relevant provisions
of the Law on Obligatory Relations, Law on Protection against Defamation and the
Law on Criminal Procedure, by taking into account the specificity of every concrete
case, thus they would avoid any type of arbitrariness.24
Therefore, the discretion of every court related to the amount of non-pecuniary
damage caused by defamation is limited precisely by the necessity of proportionality
expressed in Article 10 of European Convention, that is, by the demand for reasons
and justifications given by the courts to be relevant and sufficient, that is, for courts
to base their decisions on an acceptable analysis of relevant facts.25
Taking into account that the content of expressed information in this case
attacked the plaintiff as a private person who, unlike public figures, does not
have to show a higher level of tolerance, the Constitutional Court concluded
that:
when deciding on the type of satisfaction which belongs to the first plaintiff, the
24
See DecisionAP 1203/05, Supra note 18.
25
Supra note 22, p. 32-34.
76
Based on everything that was said, the Constitutional Court stated that the
impugned judgment which made the applicant pay damages to the first
plaintiff cannot justify adjudging damage compensation in order to protect
the reputation of the first plaintiff proportionally to the gravity of harming
the plaintiffs reputation and the amount of interference of courts into the
freedom of expression. Therefore, it was concluded that Article 10 of European
Convention was violated because the Supreme Court:
crossed the boundary of its discretional authorization when determining the type of
fair satisfaction, that is, the amount of non-pecuniary damage due to defamation
because it did not base its decision on an acceptable analysis of relevant facts and
all circumstances which were important for the specific case related to harming the
plaintiffs reputation and that the reasons given in the impugned judgment cannot
be seen as relevant and sufficient in the sense of Article 10 of European Convention.27
26
Ibid., p.35.
27
Ibid., p.36.
77
Supreme Court did not explain which circumstances were assessed when it decided
that the awarded cash compensation for damage in fact represents satisfaction
which will establish a fair balance between the applicants right to freedom of
expression and the plaintiffs right to reputation. Especially, the Supreme Court did
not deal with the question of what the goal of disputable article was which primarily
referred to removing the municipal chief from his position and his statements on the
corruption in the municipality. The Supreme Court concluded only that certain facts
about the first plaintiff which were published in the disputable article were false.
However, this is not enough to conclude that the cash compensation achieved the
necessary proportionality between the applicants right to freedom of expression
and the plaintiffs right to reputation in the community where he, as a private person,
lives and works, that is, that such proportionality would not have been achieved
even by a different type of satisfaction such as publishing the judgment, retraction
and similar, having in mind the circumstances of this case. On the other hand, the
Constitutional Court notices that the first plaintiff did not even try to publish a
retraction although Article 8 of the Law on Protection against Defamation prescribes
the duty of injured person to take all necessary measures in order to mitigate the
damage caused by stating false facts, and especially to make a request for retraction
to the person who caused damage. In the specific case, nothing is indicating that
the first plaintiff was prevented to demand the retraction of disputable text in order
to mitigate harmful consequences which could have certainly had some influence
on the court decision on the type of satisfaction which would be fair and sufficient,
that is in this concrete case, on the amount of adjudged non-pecuniary damage, nor
did the impugned judgment show that this was taken into consideration and how.26
Determining the amount of non-pecuniary damage

5. Case AP 1288/0628
The case deals with the same applicant as the previous one and establishes that
the article published by the applicant cited several factual statements about
the plaintiff that were proven to be false by the court in the first instance, that
is, they were not proven. This is why the court of first instance concluded that
certain parts of the disputable text are defamation that caused damage to the
reputation of the first plaintiff and, therefore, there is basis for compensation.
The applicant was obligated to pay 3,000BAM; this amount was confirmed by
the Supreme Court in the appeal procedure.
When deciding on the appeal against these judgments, the Constitutional Court
firstly emphasized that certain quotes in the disputable article (that a cousin
of the plaintiff was a grey eminence in the Joint Command of Army of FB-H,
that the plaintiff used his connections in SFOR to recently send the proposal
of names of four Croatian generals who were soon supposed to become a part
of future armed forces of B-H where his name appeared, too, that the plaintiff
became a general although he has not even seen a front line as he suddenly
got sick and left the enclaves) were wrongly qualified by the Cantonal Court as
value judgments as these were factual statements which were supposed to be
proven and which was not done by the applicant. Also, the Constitutional Court
noticed that the applicant:
did not even deny the statements of the plaintiff that this was false, nor did he defend
himself by honest intention as a type of replacement for proving the innocence,
and nor did he show that he made a reasonable effort in order to verify stated facts.
During the proceedings, the applicant insisted only on the fact that it was unclear
in which way the prosecution was proving that publishing such article made him
suffer any shame or inconvenience and he also disputed the amount given in the
statement of claim.29
By applying the standards and principles used in the previously described
case, the Constitutional Court reached a different conclusion that there was
no violation of Article 10 of the European Convention. The Courts decision was
explained in the following manner:
The applicant published false facts about the plaintiff and he had not even tried to
verify the disputable information which he was obligated to do. Courts made it clear
Decision on appeal, applicant: Slobodna Dalmacija d.d Split, Constitutional Court of
B-H (AP 1288/06), 18 October 2007, http://www.ustavnisud.ba/bos/odluke/povuci_
html.php?pid=92336 (accessed 22 March 2012).
28
29
Ibid., p. 28.
78
Also, the Supreme Court decided that the applicant published false facts on purpose
while making them sensational which is especially seen in the title and subtitle of the
disputable text which was accepted as defamation by the Cantonal Court. Therefore,
the Supreme Court concluded that the applicant did not follow generally accepted
professional standards thus the statement of claim of the plaintiff is only partially
well-founded regarding the amount of damage, which was also established by the
court of first instance.
Therefore, even though announcing possible misconduct of public figures to
the public is a justified goal of journalists and media in a democratic society, the
Constitutional Court considers that in this specific case there was no honest intention
of the applicant and there were no reasonable efforts made either to confirm the
expressed facts or to mitigate harmful consequences later, especially having in mind
that the plaintiffs reaction was published only whereas the apology for unverified
and false statements in the disputable text and retraction were not.
Having in mind the abovementioned, the Constitutional Court considers that the
measures taken to protect the reputation of the plaintiff, that is, adjudging the
mentioned amount of compensation for damage is proportional to the gravity of
harming the plaintiffs reputation as well as to the amount of interference of courts
into freedom of expression which occurred when this measure was taken. Also,
the Constitutional Court considers that impugned decisions of the courts did not
cross the line of their discretional authorization when determining the amount of
non-pecuniary damage caused by defamation as these decisions were based on an
acceptable analysis of relevant facts and all circumstances important for the specific
79
that the content of stated information was an attack on the plaintiff as a public figure
and especially on his reputation which also made public trust him less. Therefore,
the Cantonal Court heard the plaintiff as an injured person and it established that it
was hard for him to see false facts in the disputable article because the plaintiff was
a good example for his workers and that they probably wondered what kind of a
person he was and what kind of a commandant he was and even that his son was
asked at school if it was his dad who betrayed his people. Furthermore, the court
stated that the aim of false information in the text was to present the plaintiff as a
person who is self-willed and immoral which certainly harms his reputation as well
as to present him as a person who is capable of taking illegal actions in order to fulfill
his goals. This especially refers to the part of the text which states that the plaintiff
constantly works on criminalization of military staff as the plaintiff is publicly
characterized as a criminal. Having all this in mind, Cantonal Court also concluded
that 3,000KM of compensation for the damage would be the right satisfaction while
the applicant should be obligated to publish the caption and disposure of final
sentence. The Court also explained that the priority should be placed on publishing
the retraction instead of adjudging high compensations hence the rest of the
statement of claim was repudiated.
case and related to the harmed reputation of the plaintiff. The Constitutional Court
saw provided expositions and reasons as relevant and sufficient in the sense of
Article 10 of European Convention.301
Right to fair trial and privacy

The Constitutional Court also decided on appeals made by people who asked
for protection against defamation, that is, plaintiffs whose complaints were not
successful in defamation suits. In such cases, the applicants could not quote
Article 10 of the European Convention, as the situation did not relate to their
freedom of expression. Therefore, they most often based their appeals on the
violation of right to fair trial found in Article 6 of European Convention or the
right to privacy in Article 8 of European Convention.
1. Case No. U42/03312
Although Case No. U42/03 dealt with the assessment of the constitutionality of
the Law on the Basis of Public Radio-Television System and Public Radio-Television
Service of Bosnia and Herzegovina, the Constitutional Courts stance was
relevant to the application of Article 10 of the European Convention in general.
Regarding the statements of the applicant related to the assessment of the
Laws constitutionality concerning the violation of Article 10 of the European
Convention due to establishing allegedly monopolist position of Public RadioTelevision Service of Bosnia and Herzegovina in relation to the entity radiotelevision broadcasters, the Constitutional Court concluded that:
therefore, Article 6 of European Convention does not protect state organs and
institutions with public authorities. Moreover, European Convention stipulates that,
when fulfilling their duties, all levels of state rule are obligated to respect the rights
and obligations in it. In given context, the Constitutional Court considers that entity
public radio-television broadcasters do not enjoy the protection of Article 10 either.
Furthermore, the specific case does not contain elements due to which European
Convention would have to be interpreted differently.
However, this position does not refer to the right of employees of public radiotelevision broadcasters to freedom of expression and information in Article 10 of
European Convention. In that respect, the Constitutional Court also quotes the
30
Ibid., p.35-38.
31
Decision on statement of claim, applicant: Deputy of Dr. Nikola piri, the Chairperson of the
House of Representatives of the Parliament of Bosnia and Herzegovina, the Constitutional
Court of B-H 42/03, 17 December 2004, http://www.ustavnisud.ba/bos/odluke/povuci_html.
php?pid=24784 (accessed 22 March 2012)
80
2. Case No. AP 427/06345

In this case, the applicant complained to the Constitutional Court because of
an alleged violation of the right to fair trial and the right to privacy after lower
courts rejected his request for compensation against weekly newspaper Ljiljan.
The applicant stated that this weekly magazine published false information
about him, that is, that he was a commander of HVO and that he gave an order
to arrest all Muslims-Bosniaks in Jasenice near Mostar, which caused damage
to him. Related to statements about the violation of Article 6 of the European
Convention, the Constitutional Court, inter alia, stated the following:
The crucial proof was the realization that the defendants only took over the quote
from a certain military document without questioning its nature and this is entirely
compatible with the obligation of court to independently and responsibly, based on
a versatile assess of all facts and proofs, decide which proofs will be accepted and
which rejected and how it will qualify the entire evidence material (Article 8 of the
Law on Criminal Procedure of FB-H).
As the main argument which the applicant used in order to support the claim that his
right to fair trial was violated is the facts that the courts did not take into account his
statements about damage that was caused to him when the defendants published that
his participation in the war was proven by a secret document which is not characterized
as a public document, hence it does not meet the condition of confidentiality and it does
not have the features of a public document [...] The Law on Protection against Defamation
determines that there is no liability for defamation: a) if the expression contains opinion
or if this expression is substantially true while only insignificant elements are false; b) if
the person who caused the damage is obligated to express or deliver statements or if
this person expressed or delivered statements during legislative, judiciary or managing
procedure; c) if the expression or deliverance of statement was reasonable. The entire
judiciary procedure shows that the text in weekly Ljiljan denied by the applicant,
Vogt v. Germany (17851/91), paragraph 43, 1995, http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (accessed 22 March 2012).
32
33
Ibid., p.24-25.
Decision of Constitutional Court of B-H (AP 427?06), 5 June 2007, Official Gazette of
B-H No. 6/08, http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pid=91421
34
81
opinion of European Court of Human Rights such as the one in the judgment passed
on 26 September 1995 related to case Vogt against Germany and other32., according
to which the principles of Article 10 of European Convention are applicable to public
officials, too, because, even though it is justified if the state imposes on public officials
the obligation of discretion, considering their status, public officials are individuals
and as such they are under the protection of Article 10 of European Convention.334
meets the abovementioned criteria because this was not expressing ones opinion but
delivering a statement given in some other source which was basically reasonable. The
Law on Protection against Defamation and the practice of European Court of Human
Rights do not make a distinction between whether the deliverance of information came
from public or secret document, whether this document was published or not, whether
the applicant was able to see this document, whether the source of the document was
demanded or not. The main issue is that this document exists and that the author or
publisher of newspapers only delivers it, quotes or gives information which can already
be found in it. There is no damage caused to a person if there is only a deliverance of
what already exists in some document.356
The Constitutional Court concluded that there was no violation of the right to
fair trial just because the courts that made the impugned decisions concluded
that there was no defamation. Therefore, the editor of magazine and the author
of text did not cause any damage.
Related to the alleged violation of the rights prescribed in Article 8 of the
European Convention, the Constitutional Court stated:
this Article does not protect relations in public life sphere and the statements in the
appeal show that facts and proofs offered by the applicant are related precisely to his
public activities and not private ones. The practice of European Court confirms that
it is very difficult to distinguish what the public sphere of an individual is and what
the private one is, considering numerous relations of an individual. However, the
public sphere of activities of an individual in all democratic countries is particularly
assessed and established and hence it is exposed to a stronger social criticism and
supervision (seeNiemitz versus Germany, judgment passed on 16 December 1992,
series A, No. 251-B, point 29).
[...] It is true that the violation of privacy can occur after publishing texts in
newspapers which are intrusive to the privacy of an individual and which are related
to private, family and home life, physical and moral integrity, honor and reputation,
avoiding to be presented in a bad light, not revealing irrelevant and shameful facts
(for example, publishing certain photos, confidential phone calls, revealing details
from a private life, etc.). However, specific texts about the applicants activities as
the commander of a military unit during the war are not included in privacy but in
public function of the applicant during the war. The Constitutional Court considers
that the circumstances of this case do not involve the question of the right to private
life. Since in this specific case, the article does not tackle the applicants private
sphere hence it does not enjoy a specific constitutional-legal protection, there is no
violation of the right to private life of Article II/3.f) of the Constitution of Bosnia and
Herzegovina and Article 8 of European Convention.367
35
Ibid., p.28-29.
36
Ibid., p.37-38.
82
This case was an appeal submitted to the Constitutional Court related to

the violation of the right to fair trial because courts repudiated the charges
demanding the defendant, a private person, compensations for damage caused
by defamation. Namely, the applicant pressed charges against the defendant
because he received three letters from him containing false information and
claims which, according to the applicant, represent defamation. Furthermore,
the applicant stated that the content or one part of the content of these letters
was published in daily newspaper Osloboenje. The Municipal Court repudiated
these charges as it established that the defendant sent a private letter to the
applicant and that the content of these letters was not shared with a third
person, nor did it identify the applicant to any other third person. Therefore, the
Municipal Court stated that the evidence established that the media published
information about letters in question based on a source from the applicants
circle and that it was not proved that the defendant was liable for this. The
Cantonal Court upheld this decision.
During the appeal, it was claimed that there was the defendant was liable for
defamation as the content of letters was made available to a third person as he
knew or had to know that the applicant has a secretary, office, employees in
the protocol which certainly have to be familiar with the content of all letters
received through the protocol of the cabinet of reis-ul-ulema.
However, the Constitutional Court established that the decisions did not violate
the applicants with to fair trial in any way. Although the case was deciding
whether the right given in Article 6 of the European Convention was violated, the
Constitutional Court pointed out all general principles of freedom of expression
of Article 10 of the European Convention. The Court concluded that the lower
courts did not violate the applicants right to fair trial as they established that
the conditions in Article 1 of the Law on Protection against Defamation were not
fulfilled since it was certainly proven that the defendant was not the one who
made the letters he wrote public, that is, that the defendant did not identify the
applicant to a third person.
Decision of the Constitutional Court of B-H (AP 24/09), 23 September 2011, http://www.
ustavnisud.ba/bos/odluke/povuci_html.php?pid=381782 (accessed 22 March 2012).
37
83
3. Case AP 24/09378
EXPRESSIONS RELATED TO PUBLIC INTEREST MAT TERS

Mladen Srdi
One of the most important problems regarding the application of the standards
of freedom of expression is certainly the treatment of public figures, especially
politicians, in the media and the relation of this treatment with the issues concerning the public interest. With regards to this, the opinions in legal theory and
practice have become rather clear and rather similar.
SUPERVISION OVER PUBLIC OFFICIALS

The Declaration of the Council of Europe on freedom of political debate in the
media1, adopted in 2004, emphasizes the principle of supervision of public over
public officials. According to this, public officials have to accept that they will be
the subject of supervision and criticism of the public, especially in the media, regarding the way in which they carried out or carry out their duties to the extent
necessary to ensure transparency and responsible.
9
Regarding the reputation of politicians and public officials, it is recommended

that politicians and public officials should not enjoy a greater protection of reputation and other rights than other individuals and hence national law should
not stipulate more strict sanctions for the media criticizing political figures. Any
deviation from this should be allowed only when it is absolutely necessary in
order to allow public officials to carry out their functions in an adequate way.
On many occasions, the European Court considered cases when there was a procedure before national courts based on alleged defamations and insults pointed
at state institutions, politicians, or police officers (when ruling politicians and
public officials benefited from these judgments). The Court mainly found that
there was a violation of Article 10 of the European Convention.2 The basic opinion of the Court was that criticism of politicians should not be limited. The starting point is that politicians are voluntarily exposed to media and public analysis
hence using offensive or exaggerated expressions against them can normally be
considered a part of the democratic process. On the other hand, criticizing the
privacy of politicians should be more moderate even in cases when the public is
already familiar with this information.
10
Council of Europe, Declaration on Freedom of Political debate in Media (12 February

2004), https://wcd.coe.int/wcd/ViewDoc.jsp?id=118995&Lang=en (Accessed on 28
July 2011).
2
84
11
The Court emphasized the main principle the limits of acceptable criticism are
wider with regard to a politician acting in his public capacity than in relation to a
private individual. A politician inevitably and knowingly lays himself open to close
scrutiny of his every word and deed by both journalists and the public at large, and
he must display a greater degree of tolerance.
The Court also stated that, although the style of the text is polemical, it was not
an unfounded personal attack as the applicant provided an objective explanation. In addition, it emphasized thatpolitical attacks often turn to a private sphere;
this is the danger of politics and of a free debate about ideas which ensure a democratic society. The Court reiterates that journalistic freedom also covers a possible
resort to exaggeration or even provocation.
Furthermore, the Court highlighted that political invective often spills over into the
personal sphere; such are the hazards of politics and the free debate of ideas, which are
the guarantees of a democratic society.The Court also concluded that the style of the
applicants article was influenced by that of Resende, as parts of his very polemical
texts were published in parallel. Beside this, the Court emphasized the importance
of the fact that publishing the other texts, along with the introduction of issue, the
applicant acted entirely in line with rules of journalistic profession. In this way, by
reacting to such texts, he allowed readers to form their own opinion by placing the
editorial in question alongside the declarations of the person referred to in that editorial. What matters is not that the applicant was sentenced to a minor penalty, but
that he was convicted at all. Therefore, the journalists conviction was not therefore reasonably proportional to the pursuit of the legitimate aim, having regard to the interest of
a democratic society in ensuring and maintaining the freedom of the press. In this case,
the European Court established that there was a violation of Article 10.
Because the applicant criticized an allegedly injured politician that previously
Lopes Gomes da Silva v. Portugal (37698/97), 28 September 2000, http://www.iidh.
ed.cr/comunidades/libertadexpresion/docs/le_europeo/lopes%20gomes%20da%20
silva%20v.%20portugal.htm (accessed on 28 July 2011).
3
85
EXPRESSIONS RELATED TO PUBLIC INTEREST MATTERS
In the case of Lopes Gomes da Silva v. Portugal3, the applicant was the director of
a daily newspaper who criticized the election of Resende as leader of the rightwing party in the elections for Lisbon City Council. He accused Resende of being
ideologically....grotesque.... and....a clown and stated that he was an incredible
mixture of crude reactionarism, fascist bigotry and coarse anti-Semitism. Beside
applicants article, numerous parts of texts written by Resende were presented.
In the texts, he called the French Prime Minister at that time a bold Jew and
glorified the National Front and its leader Le Pen. The applicant was charged of
defamation. The European Court of Human Rights established that the text contributed to a political debate on issues of public interest, the field where limitations of freedom of expression should be narrowly interpreted.
expressed anti-Semitic opinions, the European Court took into account a wider
context of this expression (as it regularly does) and not just an isolated expression of the applicant.
LIMITS OF ALLOWED CRITICISM
At this point, we will again mention the often quoted case of Lingens v. Austria.4 In
this case, the European Court determined that the limits of acceptable criticism of
a political leader are wider than those of regular individuals. It is certain that politicians, too, enjoy the protection under paragraph 2, Article 10 of the European
Convention, but the demands of protection of their reputation must be assessed
in line with the public interest of open debates on political issues in a society.
12
In the case of Bowman v. UK5, the European Court determined that a debate
on serious matters of public interest, and particularly a political debate, enjoys the
highest level of protection, which is especially valid for a public debate during election campaigns. This emphasized the importance of freedom of press in times
of elections. The opinion of the Court was that political expression has one of
the key roles in a democratic society both regarding the election process and
regarding everyday issues of public interest.
13
The limitations of allowed criticism are much wider when criticism refers to government, than when it refers to an individual politician. In a democratic society,
acting or non-acting of the government must undergo media analysis. The government should not use its dominant position to approach the measures which
limit freedom of expression, especially when it comes to criminal proceedings.
The reason for this is that sometimes these measures can be a type of response
to attacks and criticism of opponents of the governemnt or the media. This is
important because, regardless of the fact that executive and legislative power
should be separated, it is well known that in many societies this is not the reality.
Regarding the treatment of politicians, we can observe the judgment of the European Court in the case of Krasulya v. Russia.6 The applicant in this case, Vasiliy
Aleksandrovich Krasulya, was the editor-in-chief of regional newspaper of Stavropol Noviy Grazhdanskiv Mir. This newspaper published an article under a
pseudonym which comments on the decision of the towns legislative body to
change the mayoral election process as to have the mayor be chosen by the legislative body of the town and not by the citys residents. Furthermore, the article
14
Lingens v. Austria(9815/82), 8 July1986, http://cmiskp.echr.coe.

4
Bowman v. United Kingdom ( 141/1996/762/959), 19 February 1998, http://cmiskp.echr.

coe.int/tkp197/search.asp?skin=hudoc-en (accessed 22 March 2012).
5
Krasulya v.Russia (12365/03), http://cmiskp.echr.coe.int/tkp197/search.

asp?skin=hudoc-en (accessed 12 May 2012).
6
86
Chernogorov pressed defamation charges against Mr.Krasulya, claiming that the

article is defamatory and harms his honor, dignity, and professional reputation,
especially due to the statements which, in his opinion, accuse him of bribery.
The County Court of Stavropol pronounced Krasulva guilty of defamation, but
innocent regarding the public offense of an official, and he was on parole for one
year. The Regional Court confirmed this judgment. The applicant objected and
stated that the criminal procedure regarding defamation was a violation of his
right to freedom of expression, which is contrary to Article 10 of the Convention.
The European Court concluded that both parties agreed on the fact that the
judgment related to the applicant was an interference into his right to freedom of expression, that it was prescribed by law, and that it had a legitimate
goal. When it comes to the question of whether this was necessary in a democratic society, the Court stated that every limitation on journalistic freedom of
Mr.Krasulya as a journalist and editor-in-chief of the newspaper had to be correctly explained and that, on the other hand, Mr. Chernogorov as a politician,
consciously and inevitably exposed his acts and words to public control and that
he should have shown a greater level of tolerance to criticism. The Court reiterated that there was very little scope under Article 10 for restriction of political
debate on questions of public interest, and that the articles subject matter
did indeed raise important issues of public concern and contributed to an ongoing political debate: it concerned the decision of the town legislative body to
abolish mayoral elections, suggesting that Chernogorov unlawfully interfered
in this process. Then, the Court concluded that it was difficult to determine
whether the statements concerning the governors influence had been a statement of fact or a value judgment, and could not agree with the domestic courts
interpretation that the article accused Mr Chernogorov of bribery, finding that
it only alluded to his influence and, through the use of the future tense, had
made suppositions rather than stating facts. Moreover, the Court found that it
was undisputed that the governor attended the legislative bodys session and
tried to persuade them to vote for the decision. Therefore, the published article
had a sufficient factual basis.
Further to that, the Court considered that the comments on the governors managerial abilities and his miraculous escape from defeat in elections were subjective value judgments and could obviously not be proved. The Court established
that the article did not resort to offensive language and did not go beyond the
generally accepted degree of exaggeration or provocation.
Finally, the Court held that Mr Krasulyas suspended prison sentence was dis87
states that the decision was made under the pressure of Mr. Chernogorov, the
governor of the Stavropol region. In the article, Mr. Chernogorov is called loud,
ambitious and completely incompetent.
proportionally severe because it effectively restricted his journalistic freedom

by threating him with prison time if he committed any further related offences
within the following six months. The Court therefore held that there had been a
violation of Article 10 in this case.
This example is good for analyzing the elements taken into account by the European Court when the cases deal with expressions of public interest and when
they refer to politicians. First, the court determines whether a politician (usually
the plaintiff in the court procedure) exposed his words and acts to public control
and whether this person has to show a greater level of tolerance. Also, it is assessd whether the disputable article or program truly dealt with issues of public
interest and then whether there was a sufficient factual basis for a disputable
expression, whether the comments refering to politicians competence were
subjective value judgments, that is, whether they can be proved or not.
The European Court of Human Rights does not provide a special protection of
political and public figures in one country, nor protection of foreign officials. In
the case of Colombani et al. v. France7, the applicants were found guilty for insulting a foreign president due to publishing a text which, among other, identified
Morocco as one of the leading drug exporters.
15
The judgment of European Court stated that:

a special status of heads of state would be derogated from the general law and
could not be reconciled with modern practice and political conceptions, since its
effect was to afford them immunity from criticism solely because of their function
or status, irrespective of whether the criticism was justified. In the Courts view, that
privilege went beyond what was necessary to achieve the objective.
PRACTICE OF COURTS IN BOSNIA AND HERZEGOVINA
In our entity laws, the treatment of the expressions related to issues of political
or public interest if the injured person is or was a public official, or a candidate for a function of public organs, and if this person has, according to general
opinion of the public, a significant influence on issues of political or public interest was solved in the way that the person who is the author of expression is
liable for possible damage caused by stating or disseminating expressions only
if he/she knew that the expression was false or if he/she was careless and thus
neglected that the expression was false.
Therefore, in these cases, the standard of liability is milder than in other cases that
do not have the elements of public interest or a public figure as an injured person
Colombani et al. v. France (51279/99), 25 June 2002, http://cmiskp.
7
88
Responsibility of politicians and public officials

The example of judgment of Basic Court in Banjaluka in case No. P-2033/01 shows
us how domestic courts decided, in line with the abovementioned provisions of
the Law on Protection against Defamation of RS8, on the liability of the defendant in
case where the plaintiff is a politician. In this case, the plaintiff K.P. made charges
before the Basic Court in Banjaluka demanding the compensation for non-pecuniary damage against Journalistic, Editorial, and Graphics Company Nezavisne novine, due to allegedly tendentious, suggestive, and malicious way in which they
presented the work of the plaintiff as a high official in the Government of RS. He
claimed that it was stated that he was opposing the decisions of the Constitutional Court, as the defendant published in articles titled K. Is deceiving the public, OEBS follows the road, K. Follows the forest and he believed that such titles
represent typical defamation. The judgment of Basic Court in Banjaluka, passed
on 13 January 2004, repudiated the statement of claim of the plaintiff because its
opinion was that the titles did not violate Article 10 of the Convention, because
the limitations of acceptable criticism are wider when it comes to a politician than to a
private person, as in this case the plaintiff was aware that he publicly commented
on the Decision of Constitutional Court of RS hence he exposed himself to a public
and journalistic supervision. The Court concluded the following:
16
The context of the content of these two articles and information they published,
limitations of freedom found in paragraph 2, Article 10 of the Convention would
make journalists reluctant to publicly discuss the issues related to the community,
and sanctions demanded by the plaintiff could impose limitations on the press
when fulfilling its tasks of an information provider and keeping its eyes open.
Judgment No. P 19/04 of April 28th 2005, passed by the Sarajevo Cantonal Court
concluded that even the president of a local community is a public official and
Republika Srpska 28/94, entered into force 1 August 2001.
8
89
(when the author can be liable solely on the basis of damage caused by false information). In any case, this is a very advanced solution contributing to freedom
of expression and it is in line with principles established in decisions of European
Court. It is certain that the practice is often vague and that courts sometimes do
not take into account this mild standard of liability when deciding on each individual case. Still, we can say that, in this regard, we are ahead of some countries
in the region, especially ahead of Serbia and Montenegro, where it often happens
that courts adjudge greater compensations for public figures and politicians, believing that they have to be protected more than regular citizens.
that this person is to suffer more criticism than a private person. The Court took
into account that this president was responsible for humanitarian aid and donations for reparations in the local community (to which the published expression
referred in the first place), which was certainly an issue of public interest in such
a small community. This is how the exposition of the judgment states:
It is undisputable that the plaintiff is the president of LC Glogova which is not a high
political function, but it is still in a small community as the one in village of Glogova,
hence it can be a significant public function.
Making distinction between value judgments and facts
The judgment of the Sarajevo Cantonal Court No. P- 41/04 of March 10th 2005,
took into account the elements of public interest and treatment of public figures
hence it was concluded that one part of expression in question was defamatory
and the other one was not. Also, the judgment dealt with the dissemination of
information and the protection of confidential sources, tackling several issues
we have previously discussed. Therefore, it can be useful to observe one part of
the exposition and see what the Court based its opinion and legislative stance
on, thus it partially satisfied the statement of claim and adjudged 6,000KM to
the plaintiff as a compensation for non-pecuniary damage to his reputation:
Statements about the plaintiff being ideologically close to Party of Democratic
Action (SDA) are not defamatory hence no harm is caused to his reputation since
they express value judgments, that is, the opinion of the author on political activities of the plaintiff, thus this expression is protected by positive legal provisions and
paragraph1, Article 10 of European Convention on Protection of Human Rights and
Fundamental Freedoms.9 Therefore, in this part, the Court accepted the statement of claim. Among other, defendants claimed that the plaintiff was a war
profiteer and criminal and in this case such statements are defamatory because
the abovementioned qualifications referring to the plaintiff cannot be seen as an
opinion, idea or attitude regarding political activities of the plaintiff, instead these
are factual statements which were proven to be false and defamatory as these expressions harm the reputation of the plaintiff.
0 17
The abovementioned judgment was confirmed by the judgment of the Supreme Court of FB-H. After the defendants submitted an appeal to the Constitutional Court of B-H due to alleged violation of right to freedom of expression,
in its decision No. AP 1881/0510 the Constitutional Court repudiated the appeal
18
Judgment of Sarajevo Cantonal Court (P-41/04), 10 March 2005.
Decision on appeal, applicants: Amarildo Guti et al. Constitutional Court of Bosnia and
Herzegovina (AP 1881/05), 20 October 2006, http://www.ustavnisud.ba/bos/odluke/
povuci_html.php?pid=53442 (accessed on 22 March 2012).
10
90
Principle of proportionality
Also, the Constitutional Court of Bosnia and Herzegovina, in case No. AP 2759/06,
dealt with the appeal of Hilmo Popovi on 26 February 2009, when the plaintiff
pressed charges before the Municipal Court against the applicant in order to get
a compensation for damage caused by defamation.
The charges stated that at the meeting of Municipal Council of Municipality of
Gorade, the applicant, as a councilor of the Municipal Council stated:
Lets say detaining a director of Public Communal Enterprise, and it seems to me
that the reason was the show broadcasted the day before yesterday, 365 dana
izmeu(365 days in between) when there were some criticism or accusations coming from both sides, and where, it seems to me, as a result of the show, yesterday, I
suppose the Prime Minister arranged detaining....and this man was kept in custody
for interrogation yesterday.
The judgment of the Municipal Court made the applicant obligated to pay
2,000KM to the plaintiff on the basis of non-pecuniary damage. In judgment No.
G-59/05 of March 14th 2005, the Cantonal Court, reversed the decision of the
first instance in order to obligate the applicant retract his statement on public
enterprise of TV BPK Gorade and to pay compensations to the harmed party.
Regarding the rest, the Cantonal Court repudiated the appeal and confirmed
the judgment of first instance.
The Constitutional Court in the exposition of its judgment states:
that the applicant expression was significantly cautious. The Constitutional Court
also notices that the applicant stated the disputable expression as a municipal
councellor at the meeting of municipal council while discussing the issues of public
interest, that the statement referred to Prime Minister who is a public figure himself
and that this was not an attack on a private life of the plaintiff. Having this in mind,
the Constitutional Court concluded that in this specific case the principle of proportionality was violated, or more precisely the proportionality between the need to
protect a legitimate goal, the reputation of the plaintiff on one hand, and on the
other, the need to ensure the applicants right to freedom of expression, that is, that
91
as an unfounded one and confirmed the judgments of other courts there was
no honest intention of the applicants and there were no reasonable efforts made in
order to confirm the expressed facts nor did they do anything to verify with the
plaintiff the data which was intended to be published. Therefore, the Court decided that the applicants facts were untrue and malicious and the plaintiff should
not tolerate them as they attacked his reputation.
such interference in the applicants right was not an urgent social need in the sense
of Article 10 of European Convention.1119

OFFENSIVE, DISTURBING AND SHOCKING INFORMATION
In the context of issues of public interest and treatment of politicians, it would
be useful to discuss the decision of the European Court in the 2007 case of
Lepoji v. Serbia12. The Court determined that domestic courts violated the right
to freedom of expression (found in Article 10 of European Convention) by passing a criminal sentence and judgment passed against Lepoji. In this case, Municipal Court in Babunica (Serbia) pronounced Zoran Lepoji guilty, because in
his text named A Despotic Mayor (Nasilniki predsednik), appeared in issue
no. 1, page 10, of a newsletter called Narodne lunicke he wrote: Therefore, Petar Joni... in his JUL euphoria, in line with the slogan money talks and for his own
existential needs, [P.J.] has continued with his near-insane spending of the money
belonging to the citizens of the Municipality on ... sponsorships ... [and] ... gala luncheons ....1321
20
On March 18th 2005, the Municipal Court ruled partly in favor of the Mayor and
ordered the applicant to pay CSD 120,000 in compensation for non-pecuniary
damage to his honor and reputation together with default interest. The Court
stated that the plaintiff was a famous person with a good reputation, otherwise
the citizens would not have elected him for a mayor. Moreover, he was a longtime director of a successful company which was successful even in difficult periods of economy and gave its workers their salaries even in time when other
companies were closing down, and that all this shows that the harm that
the plaintiff suffered is a lot more important than it would have been in the
case of any other regular citizen[bolding by author]. When discussing the appeal to this judgment, the County Court in Pirot confirmed the judgment of the
Municipal Court in Babunica and repudiated the appeal as an unfounded one.
In the abovementioned judgment of the European Court in the Lepoji case, it
was concluded that the right to freedom of expression stipulated by Article 10
is one of the essential foundations of any democratic society and, according to
paragraph 2, it is not valid just for the information or ideas which are accepted
or seen as offensive, but also for all that offends, disturbs or shocks. Further on,
the Court confirmed the right to deliver the information of public interest in bona
fide, even when it includes harmful statements of individuals, and emphasized
11
Judgment of Cantonal Court (G-59/05), 14 March 2005.
Lepoji v. Serbia (13909/05), 6 November 2007, http://www.5rb.com/case/

Lepojic-v-Serbia (accessed 28 July 2011).
12
13
Ibid.
92
22
The second judgment of the European Court of Human Rights passed in the case
of Filipovi v. Serbia15, also concluded that the interference of domestic court
was not necessary in a democratic society and that Article 10 was violated. The
violation occurred because the judgment of the litigation court was, without
any doubt, interference into the applicants right to freedom of expression and
that the target of his criticism was the mayor and a director of state enterprise.
Hence, these courts, just as criminal courts, concluded that the applicant publicly accused the representative of municipality for a criminal act of embezzlement
without him being charged of this act. In the Courts opinion, the applicant had
a legitimate reason to believe that the mayor could have been involved in tax
fraud, and his statement, in spite of containing serious claims, was not a private
attack on the mayor made without any reason.
23
These examples show us how national courts sometimes wrongly interpret that honor, reputation, and dignity of politicians and public figures are more important than
honor and reputation of ordinary citizens. This was the exact opinion of some courts
14
Supra note 12.
Filipovi v. Serbia (27935/05), 20 November 2007, http://sim.law.uu.nl/

SIM/CaseLaw/hof.nsf/233813e697620022c1256864005232b7/8a306c7684222876c1
257398004e147e?OpenDocument (accessed on 28 July 2011).
15
93
that the limitations of acceptable criticism are wider when it comes to politicians: While precious for all, freedom of expression is particularly important for political parties and their active members, as well as during election campaigns when
opinions and information of all kinds should be permitted to circulate freely. 14 The
European Court also noticed that the applicant had clearly written the impugned
article in the course of an ongoing election campaign and in his capacity as a politician, notwithstanding the Governments submission concerning the specifics of his
signature. The target of the applicants criticism was the Mayor, himself a public figure, and the word sumanuto was obviously not used to describe the latters mental
state but rather to explain the manner in which he had allegedly been spending the
money of the local taxpayers and concluded that the applicant clearly had some
reason to believe that the Mayor might have been involved in criminal activity
and, also, that his tenure was unlawful. Furthermore, the Court notices that although the applicants article contained some strong language, it was not
a gratuitous personal attack and focused on issues of public interest rather
than the Mayors private life. [bolding by author] Also, the Court states that
In view of the above and especially bearing in mind the seriousness of the criminal
sanctions involved, as well as the domestic courts dubious reasoning to the effect
that the honor, reputation and dignity of the Mayor had more significance than
... [the honor, reputation and dignity] ... of an ordinary citizen, the Court finds that
the interference in question was not necessary in a democratic society. Accordingly,
there has been a violation of Article 10 of the Convention.
in Montenegro related to famous cases when the plaintiff was Emir Kusturica (a typical
example of a person who is not a politician but who willingly chose to enter the public
sphere hence this person must be more tolerant when it comes to criticism) or Milo
ukanovi, a former president and Prime Minister of Montenegro. Domestic courts
adjudged very high amounts of compensation. We have to mention that there were
cases like this in B-H as well, but luckily, these are quite rare, probably the consequence
of explicit legal provision prescribing a milder standard of liability of authors of expression when it comes to politicians and other public people.
It is a positive thing that, based on the abovementioned judgments of the European Court, due to the need of domestic courts to have in mind international
standards when dealing with cases of criminal acts against honor and reputation,
the opinion of the Supreme Court of Serbia at the meeting on 25 November
2008 was the following:
The limitations of acceptable criticism are wider when it comes to public figures
then to private persons. Unlike ordinary citizens, public figures are willingly and consciously exposed to a thorough analysis of every word they say and of all their acts
both by journalists and by the public in general, hence they have to express a greater
level of tolerance.
Of course, in order for national courts to apply international standards, it is not necessary to take the opinion of another countrys Supreme Court, as the application
of standards of the European Court is mandatory in all countries in the Council of
Europe. However, considering that sometimes a low level of education of domestic
judges leads to resistance in the application of precedent law, it can also be useful
if domestic courts at a higher level have an influence on a regular work of courts at
lower levels by expressing their opinion in line with that of the European Court.
In Bosnia and Herzegovina, judges have a slightly easier job, as there is a rich
practice of the Constitutional Court of B-H which, as an appellative authority,
makes decisions based on a form which is very similar to the one of the European Court where the Court quotes the standards of European Court. Of course,
there are no formally legal obstacles for these judgments, as precedents are not
used by judges from other countries in the region, especially because there is no
language barrier, since language barriers can sometimes make the approach to
decisions of the European Court more difficult.
STATUS OF LEGAL ENTITIES
It is very important to say that standards referring to politicians and public
figures are also applicable when some legal entitys are in question, primarily
big companies and corporations, which the European Court considered in
94
This case dealt with two British citizens, Helen Steeel and David Morris, who
were members of Greenpeace in London. In the mid-eighties, Greenpeace in
London started a campaign against McDonalds. In 1986, as a part of the
campaign, a six-page leaflet titled Whats wrong with McDonalds? was published and distributed. In 1990, the McDonalds Corporation issued a writ
against the applicants, demanding the compensation for damage caused
because they allegedly published the leaflet. The applicants denied publication and that the challenged statement had the meanings attributed
to them by McDonalds. They also stated that it was not possible for these
meanings to be defamatory. Further, they highlighted that the words were
substantially true and that they were a fair comment on matters of fact. The
procedure lasted for 313 days and it was the longest trial in the history of
English legislature. Finally, a compensation of 40,000 pounds was adjudged.
The applicants objected and argued that, based on Article 6, paragraph 1 of
the Convention, the procedure was unfair, primarily because of the fact that
they were not allowed to get legal aid, and based on Article 10, that the proceedings and their outcome caused a disproportional interference in their
right to freedom of expression.
The defendants also objected that the burden of proving the truth was too
heavy because, as they claimed, they were not involved in making the leaflet, but only in the campaign. But, under Article 10 of the Convention, the
burden of proving the truth is placed on the defendant no matter if this person objects or not. However, regarding the objection of the applicant related
to adjudged compensation, in its exposition of the judgment, the European
Court stated that the adjudged compensation was disproportional and that:
The lack of procedural fairness and equality which has already been established by the Court, caused the violation of Article 10. Beside this, according
to the Convention, the compensation for damage due to defamation has to
be reasonably proportional to the harm caused to ones reputation. It is true
that no steps were taken to enforce the damages award against either applicant, the fact remains that the substantial sums awarded against them
have remained enforceable. In these circumstances, the Court finds that the
award of damages in the present case was disproportional to the legitimate
aim served hence there was a violation of Article 10.172
Steel and Morris v. United Kingdom (68416/01), 15 February 2005, http://www.uniset.

ca/other/cs5/echr_mcdonalds.html (accessed 22 March 2012).
16
17
Ibid.
95
the case of Steel and Morris v. UK16 in 2005.
LEGAL STANDARDS REGARDING THE RELATION BETWEEN PUBLIC INTEREST AND

THE TREATMENT OF PUBLIC FIGURES AND POLITICIANS
Based on all that has been said, it can be concluded that the domestic legislature
and the practice of domestic courts and of the European Court of Human Rights,
when it comes to the relation between public interest and treatment of public
figures and politicians regarding freedom of expression, show the following:

Political debates have the greatest degree of protection which is particularly valid for public debates during election campaign;
Politicians must accept that they will be supervised and criticized by the
public especially through media, with regard to the way in which they carried out their functions, hence they have to show a greater level of tolerance
than ordinary citizens;
The abovementioned is also valid for private persons who willingly entered
public sphere, thus actively participate in public life and debates (e.g. professors, artists and others who appear on public scene and express their
opinion on issues of public interest);
The degree to which an individual entered public sphere or public debate

serves for determining the level of tolerance which this person must have
when it comes to criticism;
When criticism is aimed at the private life of a politician, even when such
information is already present in the public, those who express such criticism should use less polemical and moderate expressions. Also, what must
be avoided is involving members of the family of public figures, especially
those who are not willingly exposed to the media;
Regarding the protection of private sphere of life, ordinary citizens enjoy a

greater level of protection than politicians and public figures;
Limitations of allowed criticism are wider when criticism refers to the government than to an individual citizen or even to a politician;
When it comes to judges and prosecutors, the limitations of allowed criticism should normally be wider than when it comes to private persons, but
narrower when it comes to politicians;
When dealing with issues of public interest, journalistic freedom includes a

possible exaggeration or even provocation. In every individual case, first it
has to be established whether this issue really is an issue of public interest.
This means examining the context of the disputed statement. In case it contributes to public debate on a social, local, national or international issues,
the conclusion is usually that it referred to issues of public interest;
96
In case the expression refers to issues of public interest and if the injured person is a public official or politician; there is a liability for possible defamation
only if the author knew that the expression was false or if this person carelessly neglected that the expression was false (carelessness should here be
determined according to professional standards if the author is a journalist).
At the end of this chapter, it should be mentioned that when making statements, special attention should be paid to the terminology used. In our country, it often happens that politicians and other public figures are called mafia,
criminals, war criminals, fashists and similar in our media. Such expressions are
normally treated as defamation, except when the person in question is in fact
sentenced for a criminal act (or if there is an ongoing criminal procedure against
this person). Therefore, such expressions are not well-measured and they are
used lightly which in the public causes an effect that is opposite to the one intitially intended.
In case there is public interest to point at some possibly illegal activities of a
public figure, especially of a politician, this must be done in a very moderate
manner, without sensationalism and aggressive expressions; it is important that
journalists behave professionaly and have a good factual basis. This is the only
way in which media can realize their important role of a watchdog in a democratic society.
Some terms, such as mob are so often used in the media that there is a question of how defamatory they are for a person in the first place and whether they
should be sanctioned by courts in specific cases. Here we should remind ourselves that the Law on Protection against Defamation prescribes that their provisions are interpreted in a way which ensures the biggest extent of the principle
of freedom of expression possible, but that courts should assess this type of terminology based on the context of expression and other elements of liability for
every individual case.
97
Chapter 4
RIGHT TO INFORMATION
99
Mirjana Nadadin-Defterdarevi
Normative solutions for the right to information in Bosnia and Herzegovina are
inevitably the reflection of its constitutional concept and overall complex political structures.
The structure of Bosnia and Herzegovina as a state is complicated and it tends
to be rather inefficient; the field of right to information is not an exception to
this situation. In fact, there were objective presumptions that indicated numerous problems the legislature would face in this field. Due to the specific circumstances and the way in which it was created, the Constitution of B-H, Annex IV of
Dayton Peace Agreement1 did not pay an appropriate amount of attention to
the right to information.
3
The creators of the Constitution were aware of its shortcomings and the environment for which it was intended. Therefore, they gave extremely high authorizations to political representatives of the international community in B-H instead
of prescribing the normative solutions. These authorizations were given in order
to implement the peace agreement and they enabled political representatives
of the international community to intervene in all the necessary situations.
Such authorizations served as a base for an explicit intervention of international
community. This intervention manifested in the function of the High Representative that encourages and imposes legally binding solutions referring to the
right to information.
Therefore, the legislature in this field in Bosnia and Herzegovina has a fourth
level, along with the state, entity and cantonal levels the normative authorization of the international community.
Annex III of the Dayton Peace Agreement only mentions the importance of the
media in the election period in the context of the OSCEs role, while the Constitution itself entrusts the sphere of media to the entities. This would later turn out
to be a significant obstacle for every attempt to provide a norm for the right to
information at the state level.
Additional interpretations could not diminish the damage caused by this formulation
that was based on compromise and was devastating for the right to information.
General Framework Agreement for Peace in Bosnia and Herzegovina - Daytom Peace
Agreement, Annex IV: the Constitution of Bosnia and Herzegovina (Paris, 14 December 1995), entered into force 14 December 1995, http://www.ohr.int/dpa/default.
asp?content_id=379 (accessed 21 March 2012).
1
101
NORMATIVE FRAMEWORK OF THE RIGHT TO INFORMATION IN BOSNIA AND HERZEGOVINA
N ORMATIVE FR AME WORK OF THE RIGHT TO INFORMATION IN

BOSNIA AND HERZEGOVINA
Such illogical and unpractical formulation was fostered primarily by the political
will of entity authorities and it led to the creation of two parallel systems that
fully, both normatively and in practice, but differently formulate the right to information in Bosnia and Herzegovina.
After the war, the field of information in B-H inherited the concept of the previous normative system that was formulated based on the demands of a centralized state with great authorizations of control. In addition, this field was under
a direct and actual influence of neighboring countries or it was indirectly based
on the laws on information in Croatia and the former Federal Republic of Yugoslavia. These laws were accepted without taking into account whether they were
adequate for regulating the social context for which they were intended.
When passing authentic regulations in a particularly important sphere, the B-H
legislature was rather weak and ineffective, forcing the international community
to take the initiative.
Despite being a necessary and effective intervention, laws passed under the patronage of the international community and the bodies established in order to
act in the field of information created a legal parallelism and turned the field of
information into a legal maze.
Media regulation in Bosnia and Herzegovina has four different levels of legal
regulation. This is a consequence of the lack of good and operational regulations that illustrates the lack of democratization and developed self-regulation
in this field.
CONSTITUTIONAL PROVISIONS AS DETERMINING FACTORS

In line with constitutional norms, B-H entities have legislative powers over the
field of information, but they chose different ways of its implementation. The
Federation of Bosnia and Herzegovina is organized on the basis of the decentralization principle. It consists of 10 cantons with a significant level of self-management that also includes the authorization for regulating the right to information.
On the other hand, Republika Srpska chose the principle of exclusive centralism.
Once common and unique solutions inherited by B-H as the tradition of legal
regulation of Socialist Federal Republic of Yugoslavia (SFRY) were not a realistic
basis for such a legal particularism. This was especially true in the Federation of
B-H, where these solutions were imposed from the outside rather than coming
as a response to a realistic social situation searching for a legal norm to solve
and prevent its conflict nature. The division of power stipulated by the Constitution and the lack of any common normative starting point were the premises of
newly found uneven solutions.
102
Such domain of special rights and freedoms is common in comparative law and,
although it was expected for normative framework of the Law on Information in
Bosnia and Herzegovina to follow that pattern, this has not happened after all.
The specificity of the right to information also lies in the fact that its content is regulated by norms from national and international law. Its enforcement is followed
and assessed with the goal of determining both the true level of human rights
enforcement in general, as well as the realization of freedom of expression especially in the light of the binding standard of Article 10 of the European Convention.2
4
It is true that, when evaluating the realization of international standards in the

domestic legal system, state bodies must have a certain degree of freedom to
interpret their international obligations in accordance with specific social circumstances. This is precisely the reason why the European Court uses the term
field of discretion of the court and thus justifies specific solutions of the domestic legal system by a specific culture and specific environment in which they
are realized.
The number and variety of legal norms in B-H, especially in the Federation of
B-H, could fall under the standard of justified need of a democratic society but,
even with a great effort, it would be difficult to defend this rationally.
Laws on information were passed during a time when they did not correspond
to a realistic social environment; this made their application rather difficult. They
were not passed as a response to social need, nor were they a confirmation of
actual legal standards. Their normative solutions were not an expression of legal
tradition, legal culture or realistic needs either; they were a reception of standards of democratic society at an enviable level of development which Bosnia
and Herzegovina could not reach at that time, nor any time soon.
In that sense, normative solutions for the Law on Public Information in Bosnia and Herzegovina certainly comply with the standards of comparative law; after all, this field
was created and developed under a constant supervision and active participation of
European Convention on Human Rights occupies a special position in domestic legal
system of BiH; the Convention and its protocols contain human rights and freedoms
which are directly applied while respectivng their priority over all other laws. The Constitution of B-H, OHR Office of the High Representative, http://www.ccbh.ba/
public/down/USTAV_BOSNE_I_HERCEGOVINE_bos.pdf (accessed 21 March 2012),
Article II/2.
2
103
The right to information covers a long list of special rights and freedoms contained in the freedom of information: freedom of expression, freedom of gathering information, researching, publishing and disseminating information, freedom of printing and selling the press, production and broadcasting radio and
television programs, freedom of receiving ideas and information, freedom of
establishing legal entities which deal with public information.
the international community. However, laws need a substrate of life, adequateness

and applicability to a specific content and a specific environment. Without this, they
remain more or less successful normative formations with weak effects.
RIGHT TO INFORMATION IN REPUBLIKA SRPSKA AND IN THE FEDERATION OF B-H

The field of information in Republika Srpska is organized according to the principle of pure centralization.
Article 26 of the Constitution of Republika Srpska sets the framework for the right
to information: it ensures freedom of the press and other mass media, free establishment of print and publishing enterprises, issuing newspapers and public
informing by other means all in in line with the law. Censorship is banned by
paragraph 3 of Article 26.3
5
Mass media are obligated to perform their function of informing the public
timely, accurately and objectively.4
The following paragraph ensures that the right to correction of incorrect information shall be guaranteed to anyone whose right or legally determined interest has been violated, as well as the right to a compensation for damage arising
therefrom.5
6
The field of public information in Republika Srpska is regulated by the Law on

Public Information6 and the Law on Radio-Television.7
7
The Law on Public Information proclaims the freedom of information and the ban
of censorship; it also prescribes the way of establishing mass media and their organization and cancellation and stipulates the obligation of registration. Mass
media organizations start their work on the day of registration. The publishing of
the announcements of state entities with a particular importance and urgency,
responses and corrections are prescribed by the Law; in case the press outlet fails
to fulfill these duties, the owner and editor in chief are legally liable.
The Law regulates restrictions on the right to information based on the ban on
The Constitution of Republika Srpska (1992), Official Gazette of RS No. 28/94, entered
into force in 1994, http://www.ustavnisud.org/upload/4_8_2009_48_ustav_srpski.pdf
4
Ibid., Article 26, par.4.
3
Ibid., Article 26. par. 5.
Law on Public Information of RS (Banja Luka, 21 April 1997), Official Gazette of RS

No.10/97, entered into force in 1997, http://www.podaci.net/_gBiH/propis/Zakon_o_
javnom/Z-jinfor03v9710.html (accessed 23 March 2012).
6
Law on Radio-Television of RS (Banja Luka, 10 April 1996), Official Gazette of RS No.

8/96, entered into force in 1996.
7
104
However, the Law does not contain the provisions on free access to information, protection of sources and rights of journalists, hence deviating from usual
European standards.
From the time the Dayton Peace Agreement was signed until the middle of 1998
there were no attempts of passing a law in this field for the Federation of B-H.
This situation was a consequence of a provision found in the Constitution of FBH8 that stipulated the authorization of cantons for making policy concerning
radio and television facilities, including decisions concerning regulation and
provision thereof,9 while the authorization of central bodies referred to awarding frequencies for radio and television.10
9
10
11
Such division of authorizations in the legal system separated the allocation of

frequencies from the right to establish radio-diffusion organizations. As it can
be seen, print media are not mentioned in these provisions. This provision of the
Constitution of FB-H should be understood as an obstacle for a more rational and
practical solution. Amendment VIII, point F, allows the transfer of cantonal authorizations to the Federation when there is a need for such solution. However, the creation of a common legislative framework in this field for the territory of Federation
was not seen as necessary, or as a common interest, for mainly political reasons.
SIMILARITIES AND DIFFERENCES AMONG CANTONAL LAWS

Out of ten cantons in the Federation of B-H, six of them passed their regulation in
this field in 1998. These are the Posavski canton11, the Hercegbosanski canton12,
the Zapadnohercegovaki canton13, the Sarajevo canton14, the Unsko-sanski
12
14
13
15
The Constitution of Federation of BiH (Sarajevo, 30 March 1994), Official Gazette of FBiH
No. 1/94, entered into force 30 March 1994, http://skupstinabd.ba/ustavi/f/ustav_federacije_bosne_i_hercegovine.pdf (accessed 21 March 2012).
8
Ibid., Article III 4i.
10
Ibid., Article III 1h.
Law on Public Information, Official Gazette of the Posavina Canton No. 3/98, entered
into force in 1998.
11
12
Law on Public Information, Official Gazette of the Herzegbosanski Canton, No. 5/99.
Law on Public Information (26 May 1998), Official Gazette of the Zapadnohercegovaki
Canton, No. 7/98, entered into force in 1998.
13
14
Law on Media, Sarajevo Canton, Official Gazette of Sarajevo Canton,13/98.

105
dissemination of information and distribution of press that advocates a violent

overthrow of the system and a violation of territorial integrity and sovereignty
of Republika Srpska, violation of guaranteed freedoms and rights of citizens,
causes hatred or encourages national, racial or religious intolerance.
canton15 and the Zeniko-dobojski canton16. The adoption of laws in this field
started later on in the Tuzlansko-podrinjski canton and the Goradanski canton.17
Two cantons of a mixed national structure did not regulate this field. These are the
Hercegovako-neretvanski canton and the Srednjobosanski canton.
16
17
18
All of these laws are somewhat similar but differences among them are still
notable. Three cantons with a Croat majority (Posavski, Hercegbosanski and
Zapadnohercegovaki) have identical laws on public information. These laws
are in fact the reception of the Law on Public Information of the Republic of Croatia. Some differences among them are found only in the importance attributed
to some issues in cantonal laws. For example, the laws of the Posavski and Hercegbosanski canton stipulate the same provision according to which one editor in
chief cannot have any kind of immunity18, whereas such provision does not exist
in the Law on Public Information of the Zapadnohercegovacki canton.
19
The Law of the Posavski canton contains a provision that does not exist in the
Hercegbosanski or the Zapadnohercegovacki canton and refers to the obligation of registering an outlet within 90 days of start of its work and to the adaption of establishing acts to the new legislative regulation. In case this provision
is not respected, distribution or broadcasting will be banned.
The Law on Public Information of the Posavski canton has one fully authentic provision not found in the Law of Croatia although this law was the model for the
creation of the Law of the Posavski canton. This provision stipulates the establishment of the Council for Public Information consisting of seven members with
the task of following the situation of press-publishing activities, radio-diffusion
and other, and it suggests measures of protection in making freedom of public
information more advanced.
Unlike these three laws, cantons with a Bosnian majority did not have a common
template for passing their laws. This is visible in their names the Sarajevo canton named this law the Law on Media in the Sarajevo Canton, whereas the other
two19 accepted the name used before Law on Public Information.
20
Although these three laws were not based on the same template, it is clear that
they were passed under the influence of legal provisions in Croatia and Slovenia
and that they rely heavily on solutions contained in the proposal on public and
Law on Public Information (12 June 1998),Official Gazette of USK, No.8/98, entered into
force 15 July 1998.
15
16
Law on Public Information, Official Gazette of ZDK, No. 13/98.
See: Cantonal regulations similarities and differences I and II, Media news, No. 24 and
25, Series I, 25 January and 8 February 1999.
17
See: Article 17 of the Law on Public Information, Official Gazette of the Herzegbosanski
Canton, No. 5/98.
18
19
Zeniko-dobojski and Unsko-sanski Canton.
106
Out of these three laws20 the Law on Media of the Sarajevo canton is certainly
the most interesting one. It was the only law regulating the area of electronic
media, filling in the gap in this field since laws were mainly oriented towards
print media. New solutions united and reconciled contemporary experiences of
the European countries. The authors of the Law on Media of the Sarajevo Canton
had the task of regulating the field of media this referred both to the norms of
heteronomous and norms of autonomous legislation.21 The main shortcoming
of this significant attempt to provide a comprehensive legal solution for media
is its incompleteness; some very important fields remained outside the legislative framework (this primarily refers to RTV stations of civil sector, ban of piracy,
copyright, cable transmission).
1
All cantonal laws ensure freedom of expression as a basic human right, although
they do formulate it in different ways. In that sense, the Law on Media of the
Sarajevo Canton provides an interesting solution, as it stipulates that the freedom of public expression includes freedom of expressing thoughts, gathering,
researching, publishing and disseminating information and ideas regardless of
the media through which enables it. This Law, unlike any other cantonal laws,
explicitly bans censorship.
The Law of the Sarajevo canton also stipulates freedom of editorial policy in accordance with professional ethical standards.
Access to information should be free and there should be equal conditions for
everyone when it comes to information of public interest. The Law also stipulates situations when public institutions can deny the disclosure of requested
information (if it has to do with public safety, defense or if it is a trade secret).
These matters were regulated in a similar way in the laws of the Unsko-sanski
and Zeniko-dobojski cantons although their scope was narrower. These laws
did not prescribe an explicit ban of censorship nor sanctions in case of unauthorized denial of information disclosure. A state body was obligated to provide
requested information within eight days or to provide a written explanation of
reasons for denying the request.
The laws on public information of the Zapadnohercegovaki, Hercegbosanski and
Posavski cantons also stipulate an absolute ban on using force or abuse of office with a
20
Laws passed in Sarajevski, Unsko-sanski and Zeniko-dobojski Canton, op. a.
See more: Zoran Udovii et. al., Mediji na prekretnici: Medijska slika BiH (Media at a
milestone: the image of media in B-H), Media Online 2001, http//www.mediaonline.ba
and Usvojen Zakon o medijima (Law on Media adopted) in Media News No. 11, Series I,
Sarajevo, 27. VII 1998.
21
107
commercial radio-television prepared by the European Media Institute in Dusseldorf at the request of the OHR.
goal of affecting the content and disclosure of public information, as well as any other
type of illegal restriction of this freedom. Information held by legal entities and legislative, executive, and judicial authorities should be available to journalists under equal
conditions. Denying the disclosure of information is subject to sanctions.
All cantonal laws except the Law of the Zeniko-dobojski canton stipulate
the right of journalists to protect the confidentiality of sources. The Posavski,
Zapadnohercegovaki and Hercegbosanski cantons extended this right to editors, publishers, authors of books and authors of published reports who are not
journalists. Disclosing the source can only be ordered by a court. In this sense,
the law of the Sarajevo canton puts restrictions even on courts and stipulates
that disclosing sources can be asked for only if it prevents crimes against life.
RIGHTS, LIMITATIONS AND SANCTIONS

Restrictions of the right to freedom of expression are set in all cantonal laws
with slight differences related to analogue restrictions found in comparative
law. Some of the most important ones are the protection of privacy, ban on encouraging violence and ethnic or religious hatred, ban of public exposal to pornography, ban on illegal gathering of information and restrictions in the sphere
of broadcasting commercials in electronic media.
Provisions on the protection of privacy, dignity, reputation and honor of an individual are stipulated by all cantonal laws without any exception. The right to
protection of privacy is provided for public figures except in cases related to
their public function. This restriction is clearly set everywhere except in the Law
of the Unsko-sanski canton, where there is no difference between regular citizens and public figures when it comes to the protection of privacy.
The ban on public exposal to pornography is found in all cantonal laws. There
is only a difference in definitions of the ban the Posavski, Hercegbosanski,
Zapadnohercegovaki and Unsko-sanski cantons ban the press and other mass
media that put pornographic content on the first page. The ban does not refer to
special stores. On the other hand, the law of the Zeniko-dobojski canton does
not limit this ban only to pornography on the first page, but extends it generally
to the ban of public exposal and selling pornographic content.
Restrictions related to commercials are stipulated only in two cantonal laws the
Sarajevo Canton and the Unsko-sanski canton. Regulations of the Unsko-sanski
canton are very general and there was no attempt to make them more concrete.
The ban on interrupting religious programs with commercials was adopted as
well as the ban on sponsorship of news programs. When setting restrictions for
broadcasting commercials, the Law on Media of the Sarajevo Canton accepted
108
The time of advertising is limited to eight minutes on public television and ten
minutes on public radio per each hour of broadcasting. Advertising on commercial electronic media is treated somewhat differently.
During election campaigns, public and commercial RTV stations are obligated
to provide equal access to all political parties, coalitions and candidates and presentations of their political programs under equal conditions. At this time, it is
also allowed to broadcast political propaganda videos on a commercial basis.
Elections campaigns in Europe are normally free and paid political ads are not
allowed. This is valid especially for public RTV stations.
Cantonal laws also treat the issue of media ownership in different ways. Each of
them makes a step towards liberalization. Media can be founded by legal and
private persons in all forms of property. The laws of the Sarajevo Canton stipulates that public media (public services) can also be founded by enterprises with
mixed ownership, when the owners are representative bodies of authorities in
cooperation with other legal and private persons.22 Other laws do not make any
difference when it comes to such conditions regardless of whether public or
commercial media are founded.
3
In the Unsko-sanski canton, foreign legal and private persons are also allowed to found mass media outlets as long as the law that regulates foreign
investments23 is respected, whereas the Zeniko-dobojski canton does not allow foreign legal and private persons to found mass media outlets, but does
allow foreign capital to be included up to 49%.24 The laws of the Posavski, Hercegbosanski and Zapadnohercegovaki cantons do not contain provisions on
media ownership, but they impose an obligation to legal persons that perform
the activities of public announcing to submit data on persons who have more
than 10% of shares and on the number of shares to the relevant ministry.25 None
of the cantonal laws contain provisions on antitrust preventing the concentration of media ownership, provisions usually found in most European countries.
4
All cantonal laws stipulate the obligation of keeping journalist, audio and video
The founders of public media, on the other hand, can only be legal entities which are
founded by parliaments independently, jointly or in cooperation with other natural
persons or legal entities. According to: Usvojen Zakon o medijima (Law on Media adopted), Media News No. 11, Series I, Sarajevo, 27. VII 1998.
22
23
Article 7 of. Law on Public Information (12 June 1998),Official Gazette of USK, No.8/98.
24
Article 9 of the Law on Public Information, Official Gazette of ZDK, No. 13/98.
See: Article 21 of the Law on Public Information, (26 May 1998), Official Gazette of the
Zapadnohercegovaki Canton, No. 7/98, and Article 21 of the Law on Public Information,
Official Gazette of the Herzegbosanski Canton, No. 5/98.
25
109
the standards for electronic media in Europe.
material in order to realize the right to correction or response of interested persons. Deadlines vary from 20 days in Biha and 30 days in Sarajevo and Zenica,
while the laws of the Posavski, Hercegbosanski and Zapadnohercegovaki cantons determine this with a special law that does not have a particular name.
The eight cantonal laws differ in penalties stipulated for the distribution of pornographic materials, refusing to publish the content of urgent nature, not keeping video and audio materials, refusing to publish a correction of information
ordered by the court, violation of responsible persons in media, violations of
publisher, for institutions refusing to provide information without any legal justification.
Stipulated penalties are rather uneven; what one law treats as behavior that is
not allowed, the other law finds completely acceptable.
SHORTCOMINGS OF CANTONAL LAWS

The main shortcomings of cantonal laws are verbiage, diversity and disparity of
criminal provisions, limitations of foreign capital, and particularly keeping the
existing practice of legally stipulated records of mass media kept by public authorities. Media should be registered exclusively by courts, as is the case in most
European countries and the standard of the European Court.
Types of criminal provisions contained in cantonal laws best illustrate the real relation of the authorities with media and discriminate between media based on
how they present information with political content. There is a greater readiness
of regularly sanctioning media than a state body which, for example, deprives
the media of requested information.
RATIONALIZING AND ABANDONING NORMATIVE AUTHORIZATIONS

Normative solutions were initiated and passed under the pressure of the international community and their goals were making the right to information in B-H
more advanced and establishing the standards of comparative law in this field.
Norms of the right to information were passed at the same time by local bodies
and bodies of the international community. The competition of normative authorizations resulted in a very lively legislative activities in this field26 that could
certainly not have been envisaged by the solutions set with the initial concept.
A great number of norms that compete among themselves raise the question of
7
See: Law on Public Information (12 June 1998),Official Gazette of USK, No. 8/00; Law
on Public Information, Official Gazette of TK 15/00; Law on Media, Official Gazette of KS
10/02; Law on Media, BPKG 17/00.
26
110
The Law on the Cancellation of Law on Media of Sarajevo provides a unique answer to this question27.
8
The decision of the Parliament of the Sarajevo Canton to pass such law was explained by the passing the Freedom of Access to Information Act, the Law on Protection against Defamation and the amendment of the part referring to this field
in criminal code, and the passing Communication Law28.
9
Beside this, the Parliament determined that the Independent Media Commission (IMC) was established and then it grew into the Communications Regulatory Agency (CRA). This became an independent body in charge of all issues of
electronic media, including issuing licenses for broadcasting radio and television programs and keeping the records of all radio and television stations in B-H.
The IMC suggested that all journalistic associations in B-H pass and sign the Press
Code regulating the most important issues of print media. The Press Council was
formed through this act, basically completing the normative framework of autonomous law for print media. At the same time, the CRA drafted several Codes
and directives related to media. According to the Parliament, this is how all issues related to media were regulated by the Law on Media of Sarajevo Canton.
Perhaps the cantons still insisting on their authorization over the right to information should consider the actions of the Parliament of Sarajevo Canton transferring their authorization to a greater level in order to have a more efficient and
successful regulation of this field.
The right to information requires a clear and operational legislature. Its content
should be realistically rooted into the environment in which it is supposed to be
realized. Instead of precise regulation, it is better to choose regulation through
legal standards that will be interpreted autonomously and evolutionally.
The standards of comparative law should be accepted but with a much needed
correction of the field of discretion of the court.
The right to information is also called freedom of information. In that sense, the
freedom should evolve, mature, and conquer. Better and more modern legal
norms that do not reflect social reality will not make freedom greater nor will they
make the law more efficient; it is more than certain that they will fail in their task.
27
Official Gazette of KS 15/09.
28
Communication Law, Official Gazette of BiH 31/03.

111
which of them are justified and which are not.
T H E F R E E D OM OF ACCESS TO IN F O R MATIO N AC T
Mehmed Halilovi
The Freedom of Access to Information Act in Bosnia and Herzegovina1 was adopted
on October 18, 2000, in the House of Representatives and on October 23 in the
House of Peoples in the Parliament of B-H. The Act was published on November
17 of the same year in the Official Gazette of B-H, No. 28/00. The Act was amended
twice, first in 2006 (Official Gazette, No. 45/06), when public bodies were obligated
to issue orders instead of memoranda, and second in 2009 (Official Gazette, No.
102/092), when the amendment prescribed that public bodies and individuals are
to be fined if they block access to information.
10
11
The Freedom of Access to Information Act of the Republika Srpska3 was adopted in
the National Assembly and was published on May 18, 2001, in the Official Gazette
of RS, No 20/01. The Freedom of Access to Information Act of the Federation of B-H4
was adopted in both houses of Parliamentary Assembly of FB-H and was published in the Official Gazette of the Federation, No. 32/01, on July 24, 2001. The application of both laws in the entities was postponed for six months (the so-called
period of adaptation and preparation for application), so that the Act began to be
applied in RS on November 27, 2001, and in FB-H on February 1, 2002. The legislation of Bosnia and Herzegovina did not envisage such delay and so it relates the
date of application to the eighth day of publication of the Act. Freedom of Access
to Information Acts in RS and FB-H have not been changed so far although there
is a need to do so.
12
13
NO MORE NO LESS RIGHTS FOR JOURNALISTS

These laws (hereinafter, FoAIA when it is referred to all three acts) establish a
general right of the public to access the information owned by public authorities/organs to the greatest extent possible consistent with the public interest.
FoAIA thus establish a general rule of making all information public whereas
Freedom of Access to Information Act of Bosnia and Herzegovina (October 2000, Sarajevo), Official Gazette of BiH, No. 28/00, Entered into force on 17 November 2000.
1
Law on modifications and ammendments of Freedom of Access to Information Act in BiH

(December 2009, Sarajevo), Official Gazette No.102/09, Entered into force in December
2009.
2
Freedom of Access to Information Act of RS (May 2001, Banjaluka), Official Gazette of RS

No. 20/01, Entered into force on 18 May 2001.
3
Freedom of Access to Information Act of FBiH (July 2001, Sarajevo), Official Gazette of
FBiH, No. 32/01, Entered into force on 24 July 2001.
4
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The right to free access to information owned by public authorities is justifiably

seen as a basis for the establishment of every democratic society. It implies a
more efficient fight against corruption, as well as a healthier society, cleaner environment, more respect for human rights, more respect of privacy, safer society,
and a more efficient democracy. Therefore, this act and its application reflect
responsibility and transparency of authorities and they are the biggest encouragement for the public to be involved in decision making process of organs at
all levels.
FoAIA enables access to information for every person, regardless of his or her
citizenship, nationality, ethnicity, or place of residence. Beside private persons,
legal persons, such as enterprises and institutions, can request the access to information consistent with these acts. Journalists and media outlets do not have
more or less rights compared with other requesters.
Therefore, FoAIA laws do not make it easier for journalists to receive information
in everyday news gathering with regard to prescribed periods of time (15 days),
but it does enable the access to information and insight into documents in cases
of long-term investigative stories which do not have to be produced quickly.
Along with general rights, in the case of so called personal information, private persons also have the right to demand for this information to be changed.
Namely, in line with FoAIA, every private person has the right to be assured that
the information about this person gathered by public organs or owned by public organs is correct, timely and relevant, that is, that it is not false or forged.
Every private person has the right to ask for false information to be corrected,
and the authorities are obligated to do so or to quote the comment or remark
of this person. Private persons have the same right on the basis of the Law on
Protection of Private Data.5
14
OPENNESS, DEMOCRACY AND CORRUPTION

The access to information owned by the government and all public organs has
three main goals: it encourages openness of the authorities, it improves democracy, and it contributes to the fight against corruption. FoAIA primarily establishes a greater openness and responsibility of the authorities in the decision-making process and it ensures that their activities are in line with public interest. As a
Law on Protection of Personal Data of BiH (December 2001, Sarajevo), Official Gazette of
BiH No. 32/01, Entered into force on 28 December 2001.
5
113
THE FREEDOM OF ACCESS TO INFORMATION ACT
articles 6, 7, 8 and 9 of the three acts stipulate that, on some occasions, information does not have to be disclosed.
FoAIA do not make it easier for journalists to receive information in everyday

news gathering with regard to prescribed periods of time (15 days), but they
do enable the access to information and
insight into documents in cases of longterm investigative stories which do not
have to be produced
result, such access strengthens the

public trust in ruling organs.
FoAIA advances democratic processes by promoting public participation in the public organs
decision-making process. By providing the public with access to information owned by government,
there are more possibilities for the
public to evaluate and comment
on the activities and policies of public authorities. FoAIA is based on the fact
that citizens cannot significantly participate in public processes and decisions if
they do not know what is happening in these public organs and if they do not
have the possibility to find this out and to have influence on it.
Freedom of access to information contributes to the fight against corruption
and against the bad management of the authorities. If the government and
authorities know that they may have to account for their activities, it can be
expected for them to act in a more responsible way and respect the law. The
full application of FoAIA includes the responsibility of the public authorities and
participation of public in general.
The comparison of FoAIA in Bosnia and Herzegovina shows that these three
acts are basically the same, although there are certain differences among them.
When comparing FoAIA to similar laws around the world regulating freedom of
access to information, it becomes obvious that these acts in B-H, both at state
level and at entity levels, are mainly based on the highest international standards.
FoAIA applies to information held by all public organs (legislative, judiciary, executive and administrative) as well as to all legal persons owned or controlled by
public organs such as public institutions, public enterprises, communal organizations, public schools, faculties, state agencies or institutes. It does not apply to
private organizations and companies, nor does it refer to the commercial sector
in general.
SECRET DOCUMENTS ARE NOT EXEMPTED

FoAIA provides the public with the right to access documents, records and a wide
range of other types of information owned or controlled by public organs. What
has to be taken into account is the fact that FoAIA, just as most similar laws in
democratic countries, do not require the authorities to create new documents or
114
Under FoAIA, public authorities are obligated to provide the public with the access to documents, records and most other information on their request. However, public authorities are also obligated to publish the most important information
and to provide the public with an opportunity to have an insight into it even without the request of the public; such documents include documents concerning the
budget of the institution, regular activities and political decisions.
In line with international standards, FoAIA enables the access to information
owned by public authorities regardless of physical form, characteristics, when
it was created, or how it is classified. This way, what can be potentially disclosed
are documents and information labeled and classified as top secret, secret or
confidential, that is internal (names and labels of secrecy according to the Law
on Protection of Secret Data, Article 19, No.54/05) and this can be done especially
when prescribed exemptions cannot be applied.
In short, the right to access refers to all information regardless of their form (e.g.
written documents, electronic information and data, audio or video records,
etc.), source (whether they were created by public organs or someone else), date
when they were created, or their classification.
THREE TYPES OF POSSIBLE EXEMPTIONS

The part of FoAIA prescribing possible exemptions is also based on international standard, as it acknowledges the fact that in some cases information can be
withheld on a legal basis. FoAIA allows public organs to apply these exemptions
only in three cases; first, if it is expected that disclosing information can cause
a significant damage to legitimate functions of the government (e.g. when it
comes to national security, defense, public security, questions of monetary
policy, prevention of crime, etc.); second, the exemptions are applied in order
to protect commercial interests of a third party; and, third, to protect personal
interests and privacy of a third party.
However, the information belonging to one of these three categories is not automatically exempted from disclosure. On the contrary, before they reject the request of access to information on the basis of exemptions established in FoAIA Articles 6 8, it is mandatory for public organs to consider whether the disclosure of
information is justified by public interest. Article 9 of FoAIA prescribes the public
115
information in a new form just to respond to the request of the access to information. FoAIA does not require public authorities to analyze published data, nor to
respond to questions in a written format. Public authorities are simply required to
ensure access to the existing documents or materials containing answers to asked
questions or to requested information.
interest test, which is mandatory for all public authorities before the final decision
is made. Such approach is also based on democratic standards of most laws of this
kind in the world. Compared with similar laws in the region of Western Balkans,
only the laws of Serbia and Croatia prescribe the public interest test.
Public organs in Bosnia and Herzegovina cannot establish any other exemptions
except those given in Articles 6-8 of FoAIA. Exemptions have to be established
on the basis of examining every case and special circumstances related to the
very request that have to be taken into account. Labeling an entire category of
information as exemption from disclosure is forbidden.
Therefore, FoAIA explicitly derogates the provisions of other laws referring to
classification of security of certain information and documents. The fact that
some document is labeled as secret or confidential is not decisive when determining whether it is, according to FoAIA, exempted from disclosure. FoAIA
also explicitly requires that legislation passed subsequent to this Act that is not
specifically aimed at amending this Act shall in no way restrict the rights and obligations set out herein.
All these characteristics are based on the highest democratic standards in the
world.
OTHER LAWS ARE NOT IN ACCORDANCE WITH FOAIA

Based on a long-term experience of applying FoAIA, it is evident that the biggest
problem is the lack of compliance with other laws that exclude or significantly
reduce the right to free access to information. There are several such laws both
in the entities and in the state of Bosnia and Herzegovina. These laws were adopted after FoAIA and limit the application and the benefits of the act.
This problem was mainly tackled by the Ombudspersons of the Federation of
Bosnia and Herzegovina, who on several occasions (in 2004, 2005 and 2006) submitted special recommendations to the Government of FB-H and to the Federal
Ministry of Justice (the only organ in charge of the application of FoAIA). However,
these recommendations and warnings were not taken seriously and executive
and legislative authorities in this entity did not approach to coordinating the laws.
As lex specialis, FoAIA arranged the relation of this act with other laws. In order to
understand this relation it is crucial to see the provision of point 3, Article 25 of
FoAIA FB-H, which explicitly states that legislation passed subsequent to this Act
that is not specifically aimed at amending this Act shall in no way restrict the rights
and obligations established herein. There are similar solutions both in FoAIA of
116
15
16
However, in numerous laws passed additionally, the legislators at all three levels
acted in a way that was completely opposite to the abovementioned position.
This primarily refers to the Law on Protection of Secret Data of B-H,8 the Law on
Intelligence and Security Agency of Bosnia and Herzegovina,9 the Law on Criminal
Procedure of FB-H,10 the Law on Tax Administration of FB-H, and the Law on Tax Administration of FB-H,11 laws on labor and securities market (at entity levels), and
cantonal laws on employment in FB-H. When deciding that some information
is not to be published, public bodies based their decisions on the abovementioned laws and not on FoAIA. These laws were identified through the actions of
Ombudsperson of Federation of B-H, because public organs referred to them in
cases of decisions on non-publishing information instead of referring to FoAIA.
17
18
19
20
THE LAW ON PROTECTION OF SECRET DATA EXCLUDES FOAIA

Several laws illustrate the lack of compliance the Law on Protection of Secret Data
of B-H, the Law on Criminal Procedures of FB-H, and the Law on Tax Administration
of FB-H, as well as the laws on labor.
Example one: The Law on Protection of Secret Data of B-H prescribes strict conditions for accessing secret data and determines that access to secret data shall be
possible only under the conditions as stipulated by this Law and other bylaws issued
on the basis of this Law...
This is how the Law on Protection of Secret Data of B-H completely excluded
FoAIA and made it impossible to access any information labeled as top secret,
secret, very confidential and restricted (levels of secrecy according to this
Article 26, point 4: legislation passed subsequent to this Act that is not specifically
aimed at amending this Act shall in no way restrict the rights and obligations established herein.
6
Article 25, point 4: legislation passed subsequent to this Act the purpose of which is
not amending this Law, shall not restrict rights and obligations established by this law.
7
Law on Protection of Secret Data of BiH (July 2005, Sarajevo), Official Gazette of BiH, No.
8
Law on Intelligence and Security Agency of BiH (2004, Sarajevo), Official Gazette of BiH,
No. 12/04, entered into force in 2004.
9
Law on Criminal Procedure of FBiH (August 2003, Sarajevo), Official Gazette of FBiH, No.
35/03, 37/03 and 56/03, entered into force on 1 August 2003.
10
Law on Tax Administration of FBiH (2002 and 2004, Sarajevo), Official Gazette of FBiH,
No. 33/02 and 28/04, entered into force in 2004, http://www.pufbih.ba/hr/zakon-oporeznoj-upravi (accessed 26 March 2012).
11
117
B-H,6 as well as in FoAIA of RS7 that has the same format as FoAIA of B-H differing
only in the fact that verbs refer to singular and not plural.
law) which (parts of information) do not have to be classified in some of these

categories. In this way, the basic principle of FoAIA is being neglected; that is,
no request to access information is rejected automatically and every request is
considered for every case individually and its content is taken into account.
The Law on Protection of Secret Data of B-H still has one provision based on Article 9 of FoAIA (public interest test) prescribing that classified character may not
be specified for data if such classification is designated with the purpose of hiding
the perpetration of a criminal offence, overriding or misuse of powers, aimed at hiding any illegal activity or hiding an administrative error.
EXAMPLES OF LAWS WITHOUT COMPLIANCE

Example two: Article 70 of the Law on Labor of FB-H determines that individual
payments of salaries are not public 12 . Article 96 of the Law on Labor of Republika
Srpska13 also contains this provision.
21
22
The Law on Labor in Institutions of B-H14 does not have such provision. However,
this did not prevent members of the Parliament and delegates in the B-H Parliament to repudiate the request of non-governmental organizations and the
Center of Civic Initiatives to publish their salaries, quoting the Law on Labor in
Institutions of B-H. This is how the Freedom of Access to Information Act was automatically out of force, although no one ever announced this officially. However,
even if there had been such provision in the Law on Labor in Institutions of Bosnia
and Herzegovina, it could not be justified considering this type of information is
regarding salaries of high officials paid from the national budget.
23
Example three: Article 227 of the Law on Criminal Procedure of FB-H establishes
the process of providing the data from criminal/penal charges:
1. Information contained in the criminal record may be revealed to the court, the
prosecutors offices and bodies of restricted affairs in connection with criminal proceedings conducted against a person who had been previously convicted, to competent bodies in charge of the execution of criminal sanctions and competent bodies
participating in the procedure of granting amnesty, pardon or deletion of sentence.
Labor Law of FBiH ( 2000, Sarajevo), Official Gazette of FBiH, No. 43/99 and 32/00,
entered into force in 2000.
12
Labor Law of RS (2007, Banjaluka), Official Gazette of RS, No. 20/07, entered into force
in 2007.
13
Law on Labor in Institutions of BiH, Official Gazette of BiH, No. 26/04, 7/05, and 48/05,
entered into force in 2005 .
14
118
3. At their request, citizens may be given information on their criminal record if the
information is necessary for exercising their rights.
4. No one has the right to demand that citizens present evidence on their being convicted or not being convicted.
5. Provisions of Paragraphs 1 through 4 of this Article are special provisions of equal
relevance for the Federation Law on Freedom of Access to Information.
Even though the Freedom of Access to Information Act of FB-H is lex specialis legislation attributed specialis to the Law on Criminal Procedures, which was passed
later, in relation to FoAIA. In this way, the authorities devaluated their own Freedom of Access to Information Act, limited the rights based on it and deceived the
public.
As it can be seen in the quote from this law, the possibility of asking and receiving the data from criminal and penal records is limited to certain state bodies
(courts, prosecutors and the bodies of inner affairs in charge of the criminal-legal
sanctions and other state organs, as well as the citizens themselves whether
they were convicted or not). Therefore, there is no possibility for a private person, including the damaged one, to ask and receive the data for a third party.
Example four: Article 3 of the Law on Tax Administration of FB-H15 determines
what a tax secret is:
24
4 Tax secret

every information or data on tax payer owned by public organs except:
information and data given by a tax payer in written form stating that it is not
considered a tax secret;
information and data in the form which cannot be connected with an individual tax payer or which cannot identify him/her in any other way
data on tax payment which is, according to the provisions of this Law, publicly
published.
Therefore, tax secret covers all data and information on tax-payers except those
that, tax-payers themselves do not consider tax secret in written form.
The Law was modified and amended in 2004, 2009 and 2010. Official Gazette of FBiH
No. 28/04, 57/09 and 40/10, http://www.pufbih.ba/hr/zakon-o-poreznojupravi (accessed 26 March 2012).
15
119
2. Information from the criminal record may, upon the presentation of a justifiable
request, be revealed to governmental bodies if certain legal consequences of the
conviction or security measures are still in force.
The written response of the Federal Tax Administration addressed to the Ombudspersons of FB-H (subject OI-17/05) emphasizes that Article 2 of the Law on Tax
Administration prescribes that in case the provisions of the Law on Tax Administration of FB-H, regulating, among other areas, the rights and obligations of Federal administration and tax payers, are regulated differently in other Federal laws, then the
provisions of this Law will have the priority over other provisions in given areas. Also:
Prescribing Article 2 of the Law on Tax Administration of FB-H, legislators attributed
lex specialis to the Law and hence indicated that the field of taxes is specific.
Article 2 of the Law on Tax Administration in FB-H states that:
The provisions of this Law will have the priority over other differently formed provisions of laws in the Federation if the following areas are differently regulated: the
organization and management of Tax Administration, the cooperation between Tax
Administration and other governmental organs, rights and obligations of Tax Administration and tax payers, identification and registration of tax payers, bringing
tax charges and paying taxes, incisions and tax collections, compulsory collections
of taxes, supervision by inspection, account and commissions deduction and several
tax rebates, deadlines expired for incisions, collections and tax rebates, complaints
to tax orders, administrative punishments for tax violations, sublegal acts and tax
opinions.
Even though the Law on Tax Administration is labeled as specialis in relation to
other laws, this cannot be interpreted in the way in which the Tax Administration of FB-H does. The reason for this is that specialis refers to precise areas not
including the right to free access to information.
FOAIA EXCLUDES AUTOMATISM

FoAIA established the coordination between its main goal on one hand that
the information owned by the authorities is public and that publishIn addition, public organs cannot
ing is the rule with exemptions predeprive the public of documents
scribed only in this act and, on the
labeled as top secret, secret,
other hand, it requires that the field
confidential and restricted baof free access to information owned
sed on the principle of automatism.
by public authorities shall not be
Although such label can be relelimited by any other law.
vant when deciding whether one of
the three stipulated exemptions to
The stipulated exemptions in FoAIA
FoAIA can be applied, it is not suf(articles 6, 7 and 8 of all three acts)
ficient per se to repudiate the access
cannot be automatically applied,
to information based on this act.
but only applied along with certain
120
However, on the other hand, the nature of the provision of Article 26 point 4 of
FoAIA B-H, as well as Article 25 point 3 of FoAIA of FB-H and Article 25 point 4
of FoAIA of RS (stating that other laws will not restrict the rights and obligations
established) is binding; this obligates legislators to not limit the rights established
by this act. A good example of such action is the Law on the Protection of Personal
Data in B-H where Article 28 states that provisions of this law will be taken into account when applying the Law on Free Access to Information in Bosnia and Herzegovina. Therefore, this law did not automatically exclude access to personal information, but recommended that its provisions are taken into account.
However, this doesnt happen in practice and a great number of laws adopted
in the past few years reduce the rights established by FoAIA. As it can be seen
in some of the examples mentioned, certain laws automatically exclude some
types of information in advance (information for which it is not justified to be
treated as secret and confidential, information on salaries of public officials and
members of the parliament, providing the data from criminal/penal records,
that is, the information on tax payers owned by tax organs, etc.).
It is true that transitional and final provisions of FoAIA generally exclude the laws
on court proceedings, including the Law on Criminal Procedure, but this is done
by emphasizing that the Freedom of Access to Information Act of B-H shall not
diminish a persons rights and obligations related to access to information as
regulated under the laws on judicial procedure, including rules of evidence.
Just like similar acts in the world, FoAIA stipulates that deciding not to publish
the information is justified only if this decision is based on solving case by case
and on the content of requested information, and not of the type of information, as well as if the test of public interest is conducted. The public interest test
is based on the principle of publishing requested information regardless of
established exemptions if it is justified by public interest.
In addition, public organs cannot deprive the public of documents labeled as
top secret, secret, confidential and restricted based on the principle of automatism. Although such label can be relevant when deciding whether one of
the three stipulated exemptions to FoAIA can be applied, it is not sufficient per
se to repudiate the access to information based on this act.
Dealing with every individual request and evaluating the content and not just
the type of information are two key principles of modern legislations on freedom
of access to information and are a generally accepted international standard.
121
prescribed conditions solving case by case (and not generally), evaluating the
content of requested information (and not a type of information) and a mandatory public interest test (Article 9 of the Law), without which there are no exemptions, etc.
FoAIA is based on this principle as well but as it can be seen in these examples,
other laws listed are not. It is a paradox that both this law (FoAIA) as well as some
other laws are claimed to be lex specialis.
On several occasions, recommendations for amending FoAIA were given by the
Ombudspersons of the Federation of Bosnia and Herzegovina and non-governmental organizations such as Transparency International, the Association of B-H
novinari (B-H journalists) and others.
SOME SHORTCOMINGS OF FOAIA AND EXPERIENCES IN ITS APPLICATION

There are also certain differences among the three acts of this kind in Bosnia
and Herzegovina. The two most significant acts refer to the lack of compliance
regarding the form of a written response of public organs (letter-notice-cognizance) and regarding sanctions. The biggest deficiency is the fact that two out of
the three acts (Act of B-H and Act of FB-H) do not contain precise enough provisions that deal with appeals in the case when request is repudiated, and that the
third law (in RS) does not stipulate an appeal at all.
Among the three acts, only FoAIA in the Federation prescribed the obligation
of public organs to provide a cognizance and the right to appeal their decision
from the very start. However, this act did not determine to whom the appeal
should be addressed; in its transitional and final provisions (Article 25, point 1)
the Act quoted the Law on Administrative Procedure as one of the laws applied to
all public organs in the sense of this law16 The application of this Law showed a
true variety and a lack of resourcefulness of public organs.
25
From the very first year of its application, FoAIA of Bosnia and Herzegovina
made it obligatory for public organs to notify requesters of their right to access
the information or of the exemption of publishing. As a notice or official letter is
not a managing document, it is not binding and does not provide a possibility
of appeal in cases when requesters are denied access to information. This part of
the Law was amended in 200617 and since then, public organs at the level of B-H
have been obligated to provide acknowledgements.
26
FoAIA in Republika Srpska stipulates that the response should be in the form
of a notice and an official letter and it has not been amended thus far. The Law
doesnt stipulate a right to appeal, and instead it gives the Ombudsperson of RS
Law on Administrative Procedure (Sarajevo, 25 June 2002), Official Gazette of B-H No.
16
Law on modifications and ammendments of Freedom of Access to Information Act in B-H

(2006, Sarajevo), Official Gazette No. 45/06, entered into force in 2006.
17
122
Considering the fact that all three acts enable requesters for access to information to address the institution of the Ombudsperson at a suitable level (the Federation of B-H, Republika Srpska and Bosnia and Herzegovina), the cancellation
of the institution in both entities could cause new difficulties and misunderstandings because of the non-compliance of the three acts. By the end of 2009,
when the entity institutions of Ombudspersons were operating, the Ombudsperson of the Federation of B-H got the highest number of appeals, averaging
between 130 and 160 appeals per year, the majority of which (around 92-96%)
were solved in a positive way, granting the requesters access to information and
a suitable cognizance enabling them to make a regular appeal. Nowadays, requesters can only address the Ombudsperson of Bosnia and Herzegovina, with
offices in the big cities of the country.
ONLY STATE LAW HAS SANCTIONS

As for sanctions, none of the three laws stipulate direct sanctions, but they do
not exclude them either. On the contrary, they stipulate the possibility of sanctioning based on other laws (in he case of violation of this law, sanctions established by criminal code, laws on violations and laws in the field of management
ought to be applied...).
FoAIA of Bosnia and Herzegovina18 is the only law that modified this part; since
then, this is the only act that directly stipulates fines for public organs and responsible persons (for public organs, the fines vary from 1,000 to 15,000KM, and
for individuals responsible for acting without compliance with FoAIA from 200
to 5,000).
1
Although FoAIA stipulates the possibility of court procedures in cases when the
requested access to information is repudiated, there is no relevant court practice. This is both due to a small number of charges and to the inefficiency of
courts that do not take charge in administrative disputes as an emergency procedure.19
2
Even though FoAIA does not make it binding for state and entity authorities to
Law on modifications and ammendments of Freedom of Access to Information Act in B-H
(December 2009, Sarajevo), Official Gazette No.102/09, entered into force in December 2009.
18
The director of Center for Investigative Reporting (CIN) states that CIN pressed charges
against one public enterprise before Sarajevo Cantonal Court, but that more than two
years after these charges there were no invitation to the Court at all. The director of CIN
also stated that the inefficiency of the Court in this process was discouraging for making
such charges i n the future (Source: Mediacenter Sarajevo, 2010).
19
123
(institution has not been operating since 31 March 2010) the possibility to do so.
publish the list or the register of all public organs obligated to act in accordance
with this act, the increasing practice in democratic countries is establishing such
register. In the region, Slovenia has such register. It is precisely the non-existence
of register in Bosnia and Herzegovina that appears as an important omission in
the application of FoAIA because some public organs sometimes refuse to apply
FoAIA. These are most often legal persons formed by executive and legislative organs such as schools, faculties or universities, institutions and institutes, that is,
public enterprises partly owned by public organs. According to the records of the
Ombudsperson of FB-H, by 2009, only 172 public organs submitted guidelines to
this institutions, as well as indexes/registers of information and names of employees which are mainly related to executive, legislative and judicial authorities. It is
assumed that, in the Federation of B-H, schools, faculties/universities, institutions
and institutes, that is, public enterprises did not fulfill this obligation.
Beside the abovementioned deficiencies in the application of FoAIA, the underdevelopment of communication capacities of public institutions or slow procedures when requesting information are a limiting factor when it comes to access
to information.
Another identified deficiency in the implementation of FoAIA is the fact that
there is no system of monitoring its application. Although FoAIA prescribes that
all public institutions and enterprises are obligated to submit the information
on the number of received requests related to FoAIA and on the manner of solving them to the Ombudsperson, this system has not become fully active so far
and only a small number of public organs have met this obligation.
The analysis of three-month statistical data of public organs shows that some
public organs give names and other details on requesters for access to information in their quarterly reports, practice that is not in accordance with the act.
There is no reason to give this type of data in quarterly reports because this is
not a legal obligation and it can also discourage citizens, as there is no reason
to keep the records revealing whether they requested access to certain information.
POLITICAL BOYCOTT OF THE MEDIA CONTRARY TO LAWS

The biggest problem in the application of FoAIA is the practice of imposing
political will in order to boycott of media (such as instructions of the Prime
Minister of Republika Srpska20 which prohibit governmental institutions and
officials to have any communication with Federal Television as well as with some
3
Halilovi, Mehmed, Dodikove instrukcije: Zaustavite FTV (Dodiks instructions: Stop

FTV), Mediacentar Online, 29 March 2010, http://www.media.ba/mcsonline/bs/tekst/
dodikove-instrukcije-zaustavite-ftv (accessed 14 September 2011).
20
124
The experience of three institutions of Ombudspersons and the results of

numerous research studies suggest that, in spite of all shortfalls and obstacles, FoAIA still contributed to raising awareness of the importance of right
to access the information and generally improved the transparency of the
public institutions work in Bosnia and Herzegovina. This evaluation is not
the same for all environments and for all public organs. Mostly, the best results in the application of FoAIA were achieved in developed environments
although, just as it is the case at other levels, a constant pressure of the public and non-governmental organizations was needed in order to ensure the
full transparency of authorities and to enable access to information based
on FoAIA.
125
media outlets in RS). Depriving journalists of information is in fact a punishment

for viewers, listeners and readers, as well as the public in general. Working
bodies of the B-H Parliament have similar policies, as they decided to deny nongovernmental organizations access to information regarding the salaries of
members of the parliament; just as in the case of every other denial of access
to information of public interest, the B-H Parliament motivated their action by
quoting other laws.
Chapter 5
DEFAMATION AND MASS MEDIA
Mehmed Halilovi and Mladen Srdi
Seven years ago, in 2004, Bosnia and Herzegovina came in 21st place in the world
regarding media freedom. The list of the countries and their degree of media
freedom was made by French organization Reporters sans frontiers1. Media
laws adopted by that time greatly contributed to this position. This primarily
refers to the laws on protection against defamation (two laws at entity levels
and a similar law at the level of Brko District)2 and Freedom of Access to Information Acts (three acts at three levels)3. Although these laws are valid even today,
more recent evaluations of media freedoms were rather critical. This negative
evaluation is partly due to an increasingly bad political and economic situation.
This particularly refers to the period starting in 2006, as inadequate application
of most media laws began at that time (especially the application of the laws on
public broadcasters4 and of the Communication Law5).
4
Along with the laws on free access to information, the laws on protection against
defamation have remained almost the only silver lining in the spheres of media
and politics, both when it comes to their content, their positive messages and
their influence on judicial and journalistic practice. Also, these laws on protection
See: Freedom Press Index 2004, Reporters Without Borders, http://en.rsf.org/pressfreedom-index-2004,550.html (accessed 6 December 2011).
1
RS No. 28/94, entered into force on 1 August 2001; Law on Protection against Defamation of FBiH (Sarajevo, 2003), Official Gazette of FBiH No. 19/03, entered into force
in 2003; Law on Protection against Defamation of Brko District (Brko, 2003), Official
Gazette of Brko District of BiH No. 14/03, entered into force in 2003, http://www.skupstinabd.ba/zakoni/70/h/Zakon%20o%20zastiti%20od%20klevete-Sl.glasnik%20
Brcko%20DC,br.14-03.pdf (accessed 17 January 2012).
2
Freedom of Access to Information Act of B-H (Sarajevo, October 2000), Official Gazette of
B-H No. 28/00, entered into force on 17 November 2000; Freedom of Access to Information Act of FBiH (Sarajevo, July 2001), Official Gazette of FBiH No. 32/01, entered into
force on 24 July 2001; Freedom of Access to Information Act of RS (Banja Luka, May 2001),
Official Gazette of RS No. 20/01, entered into force on 18 May 2001.
3
Law on Public Radio-Television Service of B-H (Sarajevo, December 2005), Official Gazette
of B-H No. 92/05, entered into force on 28 December 2005; Law on Public Radio-Television Service of FBiH (Sarajevo, July 2008), Official Gazette of FBiH No. 48/08, entered into
force on 6 August 2008; Law on Public Radio-Television Service of RS (Banja Luka, May
2006), Official Gazette of RS No. 49/06, entered into force on 11 May 2006.
4
5
129
LAW ON PROTECTION AGAINST DEFAMATION
L AW O N P R OTEC TION AG AIN ST DEFAMATIO N
against defamation were revolutionary as they were the first national laws in
Europe and in the world which both normatively and practically decriminalized
defamation and insult.
DECRIMINALIZATION OF DEFAMATION AND INSULT IN B-H

Until 1999, defamation and insult were criminal acts in Bosnia and Herzegovina, just
as it was the case with the rest of Europe and the world6. For several years after the
war, there were tens of criminal proceedings involving journalists and editors, and
the Office of High Representative (OHR) made a decision on freedom of information
and on abolishing penalties for defamation and insult on July 30th 1999.7 The decision ordered both entities to adopt necessary laws so as to determine legal remedies for defamation, insult, and slander in civil lawsuits in line with the European
Convention on Protection of Human Rights and Fundamental Freedoms.
9
10
A group of international and local experts prepared the proposal for the new law
and then they provided a draft of the law to the entity parliaments by OHR and
the Organization for Security and Co-operation in Europe (OSCE) in B-H in order
for this law to be adopted. Soon after, the National Assembly of Republika Srpska
adopted the Law on Protection against Defamation. However, the Parliament of the
Federation of B-H was postponing this process for months. Finally, on November
1st 2002, at the demand of the public and media community, the OHR decided to
pass the Law on Protection against Defamation in the Federation of B-H.8
11
Therefore, restrictions on the right to freedom of expression given in Article 10,

paragraph 2 of the European Convention9 referring to the protection of reputation or rights of others applied in Bosnia and Herzegovina are mainly regulated
by the following laws:
12
Law on Protection against Defamation of the Federation of B-H published in

Official Gazette of the Federation of B-H, Number: 59/02, entered into force
More than half states in the US do not have criminal laws concerning defamation and
they include defamation in civil law. Also, the Supreme Court of the USA oborio specific
criminal judgments in cases Garrison v. Louisiana, 379 US 64 (1964), and Ashton v. Kentucky, 384 US 195 (1966).
6
See: Decision on restructuring Public Broadcasting System in Bosnia and Herzegovina and on
the freedom of information and on abolishing penalties for defamation and insult, http://www.
ohr.int/decisions/mediadec/default.asp?content_id=31174 (accessed 6 December 2011).
7
See: Decision on passing the Law on Protection against Defamation of Federation

of Bosnia and Herzegovina, http://www.ohr.int/decisions/mo-hncantdec/default.
asp?content_id=28424 (accesed 6 December 2011).
8
Ibid.
130
Law on Protection against Defamation of Republika Srpska, published in Official Gazette of Republika Srpska, Number: 37/01, entered into force eight
days after it was published.
Law on Protection against Defamation of Brko District of Bosnia and Herzegovina, published in Official Gazette of Brko District of B-H, No. 14/03, entered into force in 2003.
Law on Obligatory Relations (Official Gazette of SFRJ, Number: 29/78, 39/85

and 57/89, Official Gazette of RB-H, Number: 2/92, 13/93 and 13/94) and Official Gazette of Republika Srpska, Number: 17/93 and 3/96).
REASONS FOR PASSING THE LAW ON PROTECTION AGAINST DEFAMATION

The reform of the judicial branch in Bosnia and Herzegovina came across the
need to pass a new law regulating the question of liability for defamation. The
main idea for passing new laws was the decriminalization of defamation that
was supposed to contribute to a greater freedom of expression of the media
and, consequently, to the overall democratization of the society.
When passing the laws, the tendency was to adopt recent European standards
in this field, primarily found in Article 10 of the European Convention of Human
Rights and Fundamental Freedoms10 and in the standards of European Court of
Human Rights in Strasbourg. In the end, it was decided that liability for defamation was to be civil and that these laws in fact should regulate the issue of compensation for damage to ones reputation caused by a defamatory expression.
13
Generally, criminal laws exist in order to punish objectively socially dangerous

acts which harm the society, such as murder, abuse, theft, deception, causing, and encouraging violence and hatred. The main means and measure of
criminal law is penalty, the application of which leads to violation and limitation of freedom and rights of the defendant. Even the very threat of penalty
represents a limitation of freedom. Related to this, penalties and repressions
of criminal law are justified only when all other remedies are exhausted. The
legitimacy of treating a certain behavior as a felony requires complaints to be
verified first, especially to make sure that the repression of criminal law is the
ultimate means of protection (ultima ratio). Treating something as a felony is
legitimate and justified only in such cases.
Therefore, expressing/publishing something bad about someone else, even if it
is incorrect, simply does not belong to the category of social danger, nor does it
10
Ibid.
131
one day after it was published.
provide legitimacy for the repression of civil law. Journalists and other citizens
who publicly express their opinion in one democratic society should not be
charged as criminals because of their opinion.
Moreover, one of the reasons for decriminalizing insult and defamation is the
fact that judgment for these acts would remain in the records of punishments
and thus the charged person will have a criminal record. This fact per se is stigmatizing for this person and can have negative consequences for the person
when it comes to employment, even if the matter is a minor felony. The standpoint of the European Court of Human Rights is that passing even a very mild
sentence means that one person has a criminal record and this type of punishemnt can have a chilling effect for the media.
Although the decriminalization of defamation is the tendency of international
law and although it is recommended by the Council of Europe, for now there
are no international legally binding acts which prescribe such obligation. In that
sense, the Resolution of Council of Europe Parliamentary Assembly - Towards
decriminalization of defamation Resolution 1577 (2007) - explicitly says that the
states should define the concept of defamation more precisely in their legislation
so as to avoid an arbitrary application of the law.11
14
In many member states of the Council of Europe, as well as in our neighboring

countries, the field of defamation is still regulated within the criminal law.12
In some other states, where insults and defamations are exclusively the subject of civil proceedings, judgments are related to very high compensations
for the damage which is, accordIn addition, public organs cannot
ing to experts, a serious threat to
deprive the public of documents
freedom of media. An example of
labeled as top secret, secret,
such a state is the United Kingdom,
confidential and restricted bawhere fines reach even hundreds of
sed on the principle of automatism.
thousands of pounds, the biggest
Although such label can be releamount among all members of the
vant when deciding whether one of
Council of Europe. The study was
the three stipulated exemptions to
conducted by the Center for Social
FoAIA can be applied, it is not sufand Legal Studies at the Univerficient per se to repudiate the access
sity of Oxford in 2008 showed that
to information based on this act.
compensations for damage and total court expenses in England were
15
The Council of Europe, Resolution 1577 (2007),Towards decriminalization of defamation

(4 October 2007), http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/
ta07/eres1577.htm (accessed 18 May 2011).
11
At the end of June 2011, Montenegro passed the Law on Amendments of Criminal
Law which decriminalized defamation.
12
132
16
Therefore, according to international standards, the prosecution for the act of

defamation per se does not represent a violation of Article 10 of the Convention.
This is because possible violations of this Article, as well as of other provisions of
the Convention, are determined for every individual case before the European
Court. However, the European Court in its decisions still holds that among different interferences into freedom of expression, judgments and penalties are probably the most dangerous for very freedom of expression. Even in cases where
penalties were in fact relatively small fines, the Court was against them because
they can represent an implicit censorship. In case of The Fatullayev v.Azerbaijan
(40984/07) (2010) the European Court concluded:
Until today, nine European states have completely decriminalized defamation and insult: Ireland, Great Britain, Bosnia and Herzegovina,
Romania (insult decriminalized) Estonia, Georgia, Ukraine, Cypres and
Moldova. In the world, some of the federal states of the United States of
America have done so, as well as: Ghana, Sri Lanka, the Maldives, New
Zealand and Mexico. Also, most member states of the European Union
stopped applying the provisions of criminal laws for acts of insult and
defamation long time ago.
Harsh imprisonment sentences for defamation are stipulated by the laws
of Moldova (seven years), Slovakia (five years) and Turkey (four years).
The criminal law of the Kingdom of Norway stipulates the imprisonment
for the protection of royal family up to five years. Also, in Poland, it is
stipulated that the imprisonment should take up to ten years for a public
insult of Polish nation, the Republic of Poland and its political system and
the highest state organs.
States must regulate the right to freedom of expression having in mind the reigth
to the protection of reputation of an individual in the way which will not prevent
media to carry out their duties and warn the public of e.g. public officials misusing
their positions. Investigative journalists are liable to be inhibited from reporting
on matters of general interest if they run the risk, as one of the standard sanctions
imposable for unjustified attacks on the reputation of private individuals, of being sentenced to imprisonment. A fear of such a sanction inevitably has a chilling
effect on the exercise of journalistic freedom of expression (see Mahmudov and
Agazade, cited above, 49).
University of Oxford, A Comparative Study of Costs in Defamation Proceedings Across
Europe, By Programme in Comparative Media Law and Policy Centre for Socio-Legal
Studies, University of Oxford, December 2008, http://pcmp.socleg.ox.ac.uk/sites/pcmp.
socleg.ox.ac.uk/files/defamationreport.pdf (accessed 13 May 2012).
13
133
140 times higher than the average in Europe.13
This is why the regulation of liability for defamation in the field of civil law can be
considered a big step forward in reaching the highest international standards in
the domain of freedom of expression.
THE START OF THE APPLICATION OF LAWS ON PROTECTION

AGAINST DEFAMATION IN B-H
Even though the number of lawsuits against journalists and media was expected to become lower after the three laws were adopted, this did not happen. The
number of lawsuits actually increased rapidly in the first few years. In only two
years, almost 300 charges were made before cantonal and county courts in both
entities, three times more than two years before. If we compare this number to
the total of media outlets, both electronic and print, it turns out that every media was sued at least once, as well as one in ten journalists.14
1
According to the same source, most charges were pressed against daily newspaper Dnevni avaz and other editions of the same publisher, then against newspapers Slobodna Bosna, Dani and Osloboenje. Most lawsuits referred to politicians
and state officials at all levels of government and then followed lawsuits against
former and current journalists, that is, publishers. Individually, most lawsuits
(several tens of them every year) were started by publisher and owner of Dnevni
avaz and these lawsuits were made against editors and publishers of rival-newspapers. The second place belongs to the owner and publisher of Osloboenje.
The biggest number of charges was pressed by these newspapers against each
other, a practice specific to Bosnia and Herzegovina and very unusual for countries in the region.
In the first two years of the application of these laws, the amount of compensation found in statements of claim was generally very high (varying from 20.000
to 200.000 KM), and some of them even came up to millions. Later on, these
amounts were significantly smaller. What influenced these lower appetites of
the complaints was the court practice (judgments related to compensation
were mainly limited to the amounts between one and five thousand KM, or rarely between ten or fifteen and twenty thousand KM) and the costs of the court
(court fees are proportional to the requested amount of compensation).
Even though these laws were passed a relatively long time ago, their application
in practice only began in 2004. The primary reason for this situation is the
Halilovi, Mehmed, Kako se u B-H primjenjuje novi zakon o zatiti od klevete: novinare
tue politiari, ali i novinari! (How the new Law on Protection against Defamation is
applied in B-H: journalists are sued by politicians but also by journalists!). Media Online, 24 August 2004. http://www.mediaonline.ba/ba/pdf.asp?ID=324&n=KAKO%20
SE%20U%20BIH (accessed 6 December 2011).
14
134
Therefore, the first sentences in cantonal courts in the Federation regarding

the charges for defamation were passed at the beginning of 2004. In the initial
text of the federal law, the cantonal courts were designated as the courts of first
instance for the cases of compensations for defamation, if this occurred in the
media. As there were not many cases where disputable expression was not published in the media, the court of second instance was the Supreme Court of the
Federation of B-H and, thanks to this, the Supreme Court established its practice.
The situation is different in Republika Srpska, where, from the very beginning
of application of the Law, main courts were the courts of first instance. After the
federal Law on Protection against Defamation was amended, the authority of first
instance was logically transferred to municipal courts in the Federation.
Due to the lack of local court practice, it was necessary to apply international
standards for this field directly, and especially the standards contained in the
European Convention of Human Rights and Fundamental Freedoms, as well as
in judgments of European Court of Human Rights in Strasbourg. However, when
it comes to the protected element in Article 10, paragraph 2 of the Convention,
reputation or rights of others, there is no such jurisprudence of the European
Court in Strasbourg as the practice of the European Court is far more extensive
when other protected objects appear as subjects of disputable expression, such
as the interest of national security and preventing riots or crimes.
In the beginning, courts approached these procedures with a significant extent
of fear, suspicion and misunderstanding. On the other hand, the expectations of
journalists were too high (less lawsuits and minimum compensation). Public figures also had great expectations, but for a completely opposite reason, because
they used court procedures to protect their own reputation, dignity and privacy
(maximum compensation).
This phase remained in the past and, generally, court practice in the past ten
years has brought a lot more positive than negative experiences; there are a lot
less lawsuits (last year and this year there were less than one hundred), requests
for compensation are a lot more moderate, and the number of judgments for
defamation is not higher than 30% compared to the overall number of charges.
Therefore, it can be concluded that courts mainly rejected unreasonable
135
fact that judges and other participants in proceedings do not have enough
experience in this field. In a way, courts avoided making decisions and took
their time to approach cases of this kind, or better, they were not processed
at all until the passing of new entity Laws on Civil Lawsuit Procedure. Namely,
these procedural laws have significantly speeded up the lawsuit procedures and
limited the possibility of postponing hearings and other ways of stalling the
procedure.
requests of public figures who suffered defamation and that, on the other
hand, journalists and media have become more professional. Some of
them have done so under the pressure of court judgments and adjudged
compensations for damage. It can be noticed that most media (including
televisions and newspapers which had not been doing so) now normally
publish corrections and apologies. The reason for this is very simple, because
both laws on protection against defamation emphasize that corrections and
apologies, inter alia, represent the elements based on which it is assessed
whether there was a good faith and professionalism of journalists and media.
Journalists themselves indirectly contributed to the fact that the number of lawsuits
has become lower. In short, they realized that unprofessional behavior is not worth
it. This does not contribute to the reputation of media outlet, nor does it contribute
to their financial situation even if the adjudged compensations are not too high.
IMPORTANT PRINCIPLES OF EUROPEAN COURT IN THE LAWS OF BOSNIA AND

HERZEGOVINA
Practices and standards established by the European Court of Human Rights
had a crucial influence on media laws in Bosnia and Herzegovina and especially
on laws on protection against defamation. The practice of the European Court
clarified the following norms that are important when dealing with concepts of
defamation and insult:

Debate on serious matters of public interest, particularly if found within the

context of political debates enjoys the highest level of protection of European Court;
The European Court provides a special protection of the right to freedom of

expression to media and journalists due to their social role as public watchdogs in a democratic society and punishing them is allowed only if it is
justified by particularly important reasons;
The European Court established the norm according to which the boundaries of criticism are much broader when it comes to politicians or public
officials, because they consciously expose themselves to public supervision
of both journalists and the entire public thus they must express a greater
level of tolerance;
The European Court also established the standard according to which the
government (authorities) must put up with a greater level of criticism as
its dominant position orders avoiding the reach for penalties, especially if
there are other ways of responding to unjustified attacks and criticism;
136
The European Court makes a clear distinction between facts and opinions (value judgments), because facts can be verified whereas value judgments cannot.
BASIC CHARACTERISTICS OF LAWS IN B-H

Basic characteristics of three laws on protection against defamation can come
down to several important elements:

Criminal liability for defamation in court procedures was abolished (there is

no imprisonment and there are no fines);
Civil liability in litigatory proceedings was established and there is a possibility of compensation in cash;
Protection of national symbols and state officials was abolished;
Balance between the right to freedom of expression and the protection of

reputation and dignity of a person was established;
Right to freedom of thought is protected;
Professional acts of journalists are encouraged;
Full protection of journalistic sources is ensured;
Public authorities are not allowed to sue media outlets and journalists;
Balance between damage suffered and adjudged compensation was established;
Injured person is obligated to take all necessary measures to diminish the

damage and particularly to make a request for publishing a correction;
Solving the dispute between plaintiff and defendant by mediation is strongly encouraged;
Procedure related to defamation in mass media is considered urgent (this

is stipulated only in the Law on Protection against Defamation in the Federation of B-H whereas the Law of RS does not have such provision).
The key principles of encouraging the right to freedom of expression in both

laws are defined in Articles 1 and 2 of the Law of RS and Articles 2 and 3 of the
Law of FB-H and Law of BD. The second (b) paragraph (of Article 1 of the Law of
RS, Article 2 of the Law of FB-H and the Law of BD)15, emphasizes that the right
to freedom of expression protects both the contents of an expression as well as
the manner in which it is made, and is not only applicable to expressions that
2
15
Article 1 of the Law of RS, that is, Article 2 of the Law of FB-H and the Law of BD.
137
are received as favorable or inoffensive but also to those that might enbitter16 or
disturb. 17 This principle was based on several judgments of the European Court
(judgments in the case of Handyside v. UK, in 1991, The Observer and Guardian v.
UK, in 1992, Prager and Oberschlick v. Austria, in 199518), where it was additionally
highlighted that this was necessary due to pluralism, tolerance and generosity,
as democratic society cannot exist without them.
3
The abovementioned article of the three laws in B-H states that the law is interpreted in such manner that the application of its provisions largely ensures the
principle of freedom of expression.19
6
As it can be seen, new laws encourage free press and freedom of expression, and
even expressions that can offend, shock or disturb. But this is only one side of
the story. The other side includes definitions of liability of media and journalists.
Journalists will be liable and they will bear consequences for defamation if they
intentionally or carelessly express or disseminate false facts20, that is, if they
cause damage to the reputation of legal or natural person by stating or disseminating something false.21 Therefore, journalists and the press are requested
to act reasonably, in line with professional code, and without any bad intention.
7
However, journalists can also defend themselves when they publish false information containing defamation if they can prove they acted in good faith and
in line with the highest professional standards. What all judgments of this kind
had in common was that courts quoted the Press Code of journalists of B-H and
the Code of Communications Regulatory Agency on Broadcasting Radio and
Television Programs22, basing their judgment of the journalists professionalism
and good faith on these two codes.
9
When dealing with the transfer of defamation from criminal to legal proceedings
in B-H, new laws left out previous criminal acts in this domain such as harming
the reputation of the state (B-H and both entities), its flag, emblem and anthem,
constituent peoples Before this, it was the state prosecutor who pressed
charges as his/her official duty. New laws on protection against defamation
16
The Law of RS states to shock.
Law on Protection against Defamation of FB-H (Sarajevo, 2003), Official Gazette of FBiH
No.19/03, entered into force in 2003.
17
18
See more at: http://www.echr.coe.int/ECHR/homepage_en (accessed 8 May 2012).
19
Supra note 8, Article 3.
20
Supra note 8, Article 6, paragraph 3.
Republika Srpska No. 28/94, entered into force on 1 August 2001, Article 5, paragraph 1.
21
Code on Broadcasting Radio and Television Programs, Communications Regulatory

Agency (Sarajevo, January 2008), Official Gazette of B-H No. 20/08, entered into force on
11 March 2008.
22
138
LINGUISTIC AND TERMINOLOGICAL DIFFERENCES AMONG LAWS

The aforementioned three laws on protection against defamation in Bosnia and
Herzegovina defined important elements of defamation in an identical way, although they formed it differently. As the Law on Protection against Defamation
of Brko District took over the formulations from two entity laws, it will not be
individually mentioned further on.
In order for defamation to occur, the following conditions must be fulfilled:

Existence/publishing false information,
Identifying the injured person,
Damage to legal or natural person,
Dissemination to third persons and
Intention or carelessness.
As it was pointed out, there are no essential differences between the three laws
mentioned, except for linguistic and terminological differences. These differences can be seen in the way in which the first important element of defamation is
defined existence/publishing false information.
While the Law on Protection against Defamation of FB-H speaks about false
facts, 23 the Law of RS introduces the concept of expressing something false. 24
Although the latter definition is not the best one since it opens the possibility
of various interpretations, it is certainly more acceptable than the former, which
contains conceptual contradiction (contradictio in adiecto).
10
11
On the other hand, the Law on Protection against Defamation of FB-H does not
contain a definition of defamation as an individual concept, even though it
mainly mentions all concepts found in the Law of FB-H.
As discussed in detail below, the laws differ in their definition of who can be
liable as an author, publisher, or editor. The Law of FB-H states that every person who makes or disseminates an expression can be held liable, whereas
the Law of RS limits liability to every person in business. After many debates in
the Press Council, which included journalists, judges, media experts and others,
23
24

139
also left out insult, which can still be the subject of a procedure before court
although not based on these laws, but on the Law on Obligatory Relations.
it was suggested that the concepts of journalist and author should be defined
separately. According to this suggestion, a journalist is every person who states
their own or disseminates others information, while an author is every natural
or legal entity who provided information.
Both laws state that, before commencing proceedings against a journalist or
media entity, the injured person must submit a request for publishing a retraction and the Press Council and BH Journalists also suggested that the injured
person is obligated to make a complaint to the Press Council (in case defamation
occurred in the press) or to the Communications Regulatory Agency (the CRA)
(in the case of electronic media).
140
Mladen Srdi
When applying international standards and laws on the protection against defamation, courts are facing numerous problems and dilemmas. They wish to help
lawyers, the media community, and especially journalists and editors assess
which stated or disseminated expressions (terms used in the law) are considered to be defamatory and what would the consequences of considering a type
of statement defamatory be. This is why the analysis will include certain cases
of domestic court practice, as well as of the practice of courts in the region, and
additionally, the jurisprudence of the European Court of Human Rights in this.
Although defamation can cause damage to someone when mass media publications are not involved, such cases are very rare. This is why the analysis is
limited mainly to legal procedures when the expression in question is published
in the media. In this case, the defamatory statements become available to an unlimited number of people and thus it is potentially more harmful to someones
honor and reputation.
CONCEPT OF DEFAMATION
In theory, defamation is often defined as false information which harms the
reputation of another person or it is defined as an illegal act of intention and
carelessness harming another person by stating or disseminating false facts to a
third person. According to the Law on Protection against Defamation of RS, defamation is in fact stating or disseminating something false which can harm the
reputation of one person, and the Law of the Federation defines defamation as
the act of harming the reputation of a private or legal entity by making or disseminating an expression of false fact identifying that private or legal entity to
a third person.
This legal definition of defamation entails that beside true facts, there are also
the false ones. This confuses many people who think that if a fact is not true,
then it is not a fact in the first place. However, this linguistic contradiction does
not have too much influence on the application of the law in practice.
Stating or disseminating can only include statements which refer to a certain
event, objective states, actions, occurrences and similar, for which it can be objectively determined and assessed whether it is true or false; value judgments
cannot be considered defamation (this extremely important question will be
elaborated later on). The content of statements should refer to actions, events,
141
DEFAMATION IN COURT PRACTICE
D E FAMAT IO N IN COU R T PR AC TICE
and similar issues in both present and past, while the statements about possible
and future events cannot form the basis for a valid legal claim.
It should be mentioned that expressing every value judgment is still not entirely
protected by the European Court. Namely, courts consider whether the statement is factually justified and expressed in good faith and because of public
interest, or whether it is exaggerated.
Therefore, defamation exists only if what is stated or disseminated can harm the
reputation of one person, if it causes damage to this person, or if it is false.
DIFFERENCE BETWEEN FACTS AND VALUE JUDGMENT

Article 7. Law on Protection against Defamation of Federation1
12
There shall be no liability for defamation where:

a) by the expression an opinion was made, or if the expression is substantially
true and only false in insignificant elements;
Article 6. Law on Protection against Defamation of RS2
13
The following cases will not be treated as liable for defamation:

a) If there is the expression of opinion or if the expression is substantially true;
As it was said before, when determining if a certain statement represents defamation, it is very important to identify whether one fact is stated or disseminated, or if it is a simple value judgment. In theory, statements representing an
opinion are defined as statements without any factual aspects which could be
proven false or which cannot be justifiably interpreted as giving actual facts in
specific circumstances, including the language used (rhetoric, exaggerating, satire or ridicule).
As long as there are personal perspectives and observations of a certain event
or situation, that cannot be confirmed or negated, the essential facts on which
the opinion is based can be proven. Basically, a person can stand trial only on
false statements that can damage ones reputation. But if such information is
published in the media, the media will not be considered responsible if the
journalist or publication have a legitimate goal, when the matter is regarding
public interest or and when reasonable efforts are made to confirm the facts.
Therefore, a defense based on bona fide action can in a certain way replace
1
RS No. 28/94, entered into force on 1 August 2001.
2
142
In each case, it is important to distinguish facts from value judgments. The importance of such distinction was particularly emphasized by the European Court
in its famous judgment Lingens vs. Austria in 1986.3 This case is one of the most
important ones in the practice of the European Court, as it set some of the basic
standards that have been adopted by entity laws on protection against defamation.
14
More specifically, in 1975, P. Lingens, an Austrian journalist, published two articles in the Profile magazine from Vienna in which he severely criticized Bruno
Kreisky who was the federal chancellor at the time because of his stance regarding the leader of a political party who was a member of the SS brigade during
World War II, as well as because of his attack on Simon Wiesenthal who publicly
spoke about the political history of this politician. Because of these articles, Kreisky brought suit for defamation.
On March 26th 1979, the County Court of Vienna partially adopted the complaint
and fined Lingens with 20 000 Austrian shillings. After both parties filed complaints, the final decision of the Court of Appeal in Vienna was a smaller fine of
15 000 shillings.
In the petition submitted to the European Commission on April 19th 1982, Lingens complained about the sentence for the act of defamation, claiming that
this represented an unjustified interference into his right to freedom of expression, against Article 10 of the Convention.4 The European Court decided that the
sentence of the County Court in Vienna, confirmed by the Court of Appeal, was
an interference of public authorities into Lingens right to freedom of expression. The interference was prescribed by law and it had a legitimate goal in line
with Article 10, paragraph 2 of the Convention.
15
The Government of Austria claimed that in this case there was a clash between
the right to freedom of expression (Article 10) and the right to respect for private life (Article 8). However, the European Court stated that the criticism made
by Lingens referred to the public statement of Kreisky and his political stance
so that there was no need to examine Article 10, in the light of Article 8 of the
Convention.
While examining the proportionality of the sentence in this case, the European
3
4
143
proving the truth. Unfortunately, the court practice in Bosnia and Herzegovina
rarely shows a well-intended action when it comes to establishing the facts
and their presentation to the public.
Court primarily pointed out that freedom of expression is one of the main foundations of a democratic society and that it also refers to information or ideas
which could be offensive, shocking or disturbing. It also emphasized the particular importance of these principles when it comes to press the task of mass
media, namely, is to make information and ideas about political issues available
and on the other hand, the public has the right to receive such information.
Besides that, freedom of the press represents one of the best ways for the public
to hear the ideas and stances of political leaders and to form an opinion on this.
In this sentence, the European Court also emphasized that the scope of acceptability of criticism of political leaders is wider than the one of the criticism of regular individuals, and that even though politicians enjoy the protection in accordance with Article 10, paragraph 2, demands for the protection of their reputation
have to be measured in relation to the interest of having an open discussion in
the society related to political issues. In the case of Lingens, relevant articles dealt
with political issues of public interest in Austria. The content and tone of these articles were quite well measured, but certain expressions were capable of harming
the reputation of Kreisky. However, as the article discussed Kreisky as a politician,
the political context in which the article was written had to be taken into account
and this is the post-election controversial political situation.
The European Court considered that, in these circumstances, the sentence
passed to Lingens was in a way a censorship and that it would probably prevent
him from expressing such critical opinion in the future. Therefore, such sentence
could harm the mass media in fulfilling their task of providing the information
for general public. The European Court discussed the decisions of domestic
courts in the case of Lingens. Disputable parts of the articles referred to Lingens
value judgments, his right to freedom of opinion and delivering particular ideas.
Austrian courts, however, determined whether Lingens proved his statements
to be true in accordance with Article 111, paragraph 3 of Criminal Law. Related
to this, the European Court highlighted that there had to be a difference between facts on one hand, which can be proven, and value judgments on the
other, which cannot be proven. Beside that, the facts on which Lingens based
his value judgments were undisputable and he acted in a bona fide manner. In
conclusion, the European Court emphasized that the interference into the right
to freedom of expression was not necessary for the protection of reputation of
the others and, thus, Article 10 was violated.
DISTINCTION IN THE PRACTICE OF DOMESTIC COURTS

At first glance, establishing the difference between opinion and factual statement seems simple, but in practice this is not always so. The analysis will give
144
The judgment of the Cantonal Court in Sarajevo No. P-45/03, in its exposition,
states that:
having in mind that defamation is also defined as a term which is used for an
illegal act of intention and carelessness causing damage to another person by
stating or disseminating false facts to a third person, the opinion of the Court
is that in this specific case, the conditions were fulfilled in the sense that some
expressions in the article in question could be treated as a defamation. Namely,
it was published that the plaintiff preferred military staff and that she brought
benefits to the owner R. who then gave her free swimming in the pool. These
statements were obviously insulting. However, the article in question also says
thanks to the strong connections of the plaintiff in the Federal Ministry of Defense, R. can be sure that his premises will remain untouched, although they
were built on a fallout shelter.... This is how the author stated facts which suggested, as they were presented in such way, that the plaintiff was able to use her
contacts in Federal Ministry of Defense to get a favorable treatment of a third
person and it could be supposed that such behavior was not in accordance with
valid laws. This represents a factual statement which can be proven true or false.
Such expression cannot be considered only as opinion or satire.
However, this was not an opinion of Constitutional Court of B-H as it is stated
that: the expressions from the disputable text entirely represent value judgments,
that is, the opinion of applicants on plaintiffs and relations in daily newspapers for
which they work, and they do not contain any factual statements which could be
proven true or false. The statements A.D. prefers military staff unlike I.A. who prefers
police officers. However, both of them bring benefits to the owner R. who sometimes
allows them to swim in the pool (together) for free, can only be treated as value
judgments about defendants and relations in daily newspapers for which they work.
If the opposite was considered, it could be rightly asked how it is even possible to
prove factually that someone prefers military or police staff and hence brings benefits to the person for whom they work and that this person then treats them to a
joint swimming in the pool. Such statements cannot be proven because they do not
contain the minimum of facts which could be verified by objective evidence.5
16
Judgment No. P- 75/03 of the Cantonal Court in Sarajevo rejected the statement of claim in the case where several journalists sued the defendant S.A. from
Sarajevo. This judgment was later on confirmed by the Supreme Court of FB-H,
and Cantonal Court stated that despite obvious exaggeration, the expression
Decision on the merits, applicants: Senad Avdi, Danka Savi and Adnan Buturovi, Constitutional Court of Bosnia and Herzegovina (No. AP 787/04), 20 December 2005, http://
www.ccbh.ba/bos/odluke/index.php?src=2 (accessed 8 May 2012).
5
145
several examples of domestic courts practice of deciding on the existence of

defamatory expressions in the media.
of the defendant is basically a value judgment and not a facual statement. In

this specidic case, the statement is partially metaphorical, too, which should be
assessed very carefully when it is determined whether there was a factual statement or not. The judgment states the following:
Also, the opinion of this Court is that the statement of claim was not well-founded
because of other reasons, too. Namely, in the sense of Article 7, paragraph 1, point
a) of the Law on Protection against Defamation there is no liability for defamation
if the expression contained an opinion. Opinion is defined as a statement without
any factual aspects which can be proven false or which cannot be justifiably interpreted as expressing actual facts in certain circumstances including the language
which is used (rhetoric, exaggerating, satire or ridicule). In the specific case, the disputable expression of the defendant contains his criticism of activities of Avaz. More
precisely, the defendant stated that Dnevni avaz was anti-journalistic, the biggest
tumor in our journalism, that the new Bosniak mafia was dictating its work, that
it was terrorizing the public with its headlines, that it was using lies, constructions,
harangues, and similar, and that they were the Al-Kaida of the media, which were
all the statements given by the prosecution as the factual basis for charges. Comparing the work of Dnevni avaz with a tumor, terrorizing the public, etc. is obviously
stated metaphorically and it does not express facts but gives a value judgment with
a high level of exaggeration. Therefore, this Court considers that this has to do with
the expression of opinion of the defendant. Also, the opinion of this Court is that the
readers of expressions in question could not have taken them literally and hence
they could not have supposed that the defendants were the members of a terrorist
organization such as Al-Kaida and that they were actually terrorizing the public, because the exaggeration in this expression is obvious. Therefore, although these are
very rough and unmeasured qualifications and charges, such circumstances are not
sufficient for this expression to be seen as defamation in the sense of the Law on Protection against Defamation. In addition, this is surely so because Article 2, point b)
of the Law stipulates that the right to freedom of expression protects the content of
expression, as well as the way in which it was delivered and it is not applied only on
expressions considered as non-offensive or as a praise but also on the expressions
which can offend, enrage or disturb someone.
The judgment passed by the Banja Luka Basic Court No. P-1415/02 in 2003
concluded that the statement of the prime defendant published by the second defendant was the act of defamation against the plaintiff. Defamation
occurred by consciously delivering false facts, hence misusing the right to
freedom of expression. The defendants were thus obligated to pay the compensation of 5,000 KM.
The exposition of the judgment of the Basic Court emphasizes that the title
Customs manager on epak - the best man of D.K., with subtitle J. M. claims
that customs officers responsible for smuggling sugar are not suspended and
146
According to the appeal of the second defendant, the Constitutional Court of

B-H, in its decision No. AP 1819/07, stated that the existence of facts can be proven, but whether value judgments are true cannot. The expression in question was
not a statement of value judgment which cannot be proven, instead it was written
and published as a statement of fact in the context of organized crime to which it
is indicated by the content of the text the proof of the fact that we are dealing with
organized crime is that the lights at the border were turned off so that the vehicles
could get to Serbia. This could not have happened without the permission from the
top. I dont know to which political option the customs manager on epak belongs,
but it is well-known that he is the best man of Dragan Kalini..., which, unlike value
judgments can be proven.6
17
EXAGGERATION AND PROVOCATION

A very important judgment of the European Court, Perna v. Italy in 20037, stated that journalistic freedoms, according to the interpretation of the Court, also
contain the possibility of using a certain level of exaggeration or even provoking.
Moreover, although the Court does not have to approve the polemical, or even aggressive tome used by journalists, Article 10 not only protects the core/content of
expressed ideas and information, but the form through which they were expressed,
too. And also, related to this, the Court regularly emphasizes that the choice of forms
and ways of presenting the information is an autonomous right of journalists and
editors protected by Article 10 and that it is not a task of Courts (neither Europe18
Decision on merits, applicant Dnevne Nezavisne novine - Banja Luka, Constitutional

Court of Bosnia and Herzegovina (No. AP 1819/07), 11 November 2009, http://www.
ccbh.ba/bos/odluke/index.php?src=2 (accessed 8 May 2012).
6
Perna v. Italy (48898/9), 6 May 2003, http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/1d4d0

dd240bfee7ec12568490035df05/2a9a7ade95e63f7c41256d1e00462de8?OpenDocu
ment (accessed 8 May 2012).
7
147
the content (the proof of us dealing with organized crime is that the lights at
the border were turned off so that the vehicles could get to Serbia. This could
not have happened without the permission from the top. I dont know to which
political option the customs manager on epak belongs, but it is well-known
that he is the best man of D.K.) were established based on the evidence offered by the prosecution, that the information in the article is not true. Having
in mind that the magazine of the second defendant had a great circulation and
it is sold all over Bosnia and Herzegovina, the Court established that these false
statements caused the violation of rights of the plaintiff and they harmed his
reputation. In the time of publishing this article, the plaintiff was the president
of National Assembly of RS, hence he was exposed to the judgments of public
because of his position.
an, nor national) to impose on the media a desirable form of expressing ideas and
information.8
19
The judgment passed by the Supreme Court of the Federation of Bosnia and
Herzegovina, No. G125/05, states the following: ..by analyzing the content of
the defendants public statement made on 7 September 2003, which was delivered
resolutely in the reasons for charges of first instance, the court of first instance decided that this statement expressed only an opinion and a value judgment about
the defendants and their actions. This Court, too, finds that such statement of the
defendant is not a violation of civil law which would be defamation and this is why
the defendant is not liable according to the civil law. Namely, in order for expressing
or disseminating one statement in the sense of the provision given by Article 4, point
d, of the Law on Protection against Defamation of FB-H to be a defamatory act, it
is necessary to be able to determine and prove the facts, that is, factual statements,
true or false. On the other hand, opinions or value judgments, that is, a general opinion about someone, even if it reaches a third person, is not an act of defamation in
the sense of the article which was quoted, nor is it important to know what subjective feeling of the harmed person was caused by such opinion. If it was the other way
round, different interpretations of the provisions of the Law on Protection against
Defamation would question the main principle of freedom of expression and opinion which is guaranteed by Article 10 of the Convention on the Protection of Human
Rights and Fundamental Freedom.9
20
NOT EVERY VALUE JUDGMENT IS PROTECTED

On the basis of the Law on Protection against Defamation, a person cannot be
legally liable for an opinion, but this does not mean that all value judgments are
fully protected. Therefore, even though in court proceedings it is not legitimate
to demand a value judgment to be proven true as a reason for someone not to
be liable, it does not mean that delivering every offensive value judgment enjoys the protection of the European Court.
The Court carefully assesses whether the use of certain expressions, that is,
value judgments harming someones reputation, is justified in specific circumstances or expressed in good faith or for public interest, or still crosses the
limit of freedom of expression in a democratic society. In its judgments, the
Court emphasized that even in the cases when statements grow into value judgSee: Perna v. Italy (48898/9), 25 July 2001, http://www.iidh.ed.cr/comunidades/libertadexpresion/docs/le_europeo/perna%20vs%20italy%202001.htm (accessed 8
May 2012).
8
.P. v. the Federation of Bosnia and Herzegovina, Canton 10 Livno and Municipality of
Drvar (the Supreme Court of FB-H G 125/05), 29 September 2005.
9
148
21
Facts, as the basis of a value judgment certainly do not have to be entirely correct, instead only their important and relevant elements must be correct.
IDENTIFYING DEFAMED PERSONS

In order for some expression to be considered as defamation, the claims representing this expression should refer to a specific person. The Law on Protection
against Defamation of RS states identifying this person to a third person11 and
the Law on Protection against Defamation of FB-H states identifying this legal
entity or a natural person to a third person.12 Referring to the person to whom
defamation is related can be direct, but it can also appear in the form of not
naming that person explicitly. It is sufficient to realize according to circumstances to who the statement refers. In practice, there can be problems with regards
to the identification of a certain person, especially if only first and last names are
mentioned which are generally common in Bosnia-Herzegovina.
22
23
For example, in the judgment of the Sarajevo Cantonal Court, No. P-117/03,
charges were pressed by Duan Luki, because of the article which stated that
certain Duan Luki participated in war crimes in Doboj. This judgment repudiated the statement of claim due to the lack of evidence of identification of the
person who made charges, and the exposition, inter alia, stated the following:
As one of the conditions which have to be fulfilled in order to for the expression to
be treated as defamation, it is necessary to identify natural or legal entity to a third
person. In this specific case, this Court considers that there is no such element in this
disputable expression. Namely, the person mentioned as a member of the management of SDS, in the statement of a witness which was delivered in this article,
is named only as Duan Luki. There are no other attributes given to this name,
such as profession, name of the father or address. It is a fact that name Duan and
last name Luki are very common in Bosnia and Herzegovina. In this procedure, it
was not possible to establish that there was only one Duan Luki in Doboj and that
it was precisely the person who made charges at the time of the events described
in the testimony and published in the article. Furthermore, the article precisely said
that this was the statement of a witness whose initials were given and this stateEuropapers v. Croatia (25333/06), 2006. p.26, http://www.5rb.com/case/EuropapressHolding-D.O.O-v-Croatia (accessed 16 February 2012).
10
11
Article 5:1.
12
Article 6:1.
149
ments, the proportionality of interference depends on the fact whether there is an

adequate factual basis for a disputable statements, because value judgments, too,
without any factual basis to back them up can be exaggerated.10
ment was put in quotes in the article. The entire article, which is quite long, mostly
writes about war activities of other people whereas the name Duan Luki is mentioned nowhere else. Having in mind the abovementioned, the opinion of this Court
is that the conditions stipulated by the Law on Protection against Defamation were
not fulfilled and hence the expression in question cannot be treated as defamation.
While dealing with the appeal with regard to the abovementioned judgment,
the Supreme Court of the Federation, in its judgment No. G-130/04, confirming
the first judgment, stated:
In order not to repeat the reasons of the court of first instance, this Court notices
that contrary to the claims made in charges, the first name Duan and last name
Luki are common in our country. The article in question lists the managers of
SDS in Doboj and gives professions such as: female police officer, director of the
board of executives, teacher, doctor, the president of SDS, whereas with name
Duan Luki there is no lawyer or former judge, and if the word had been precisely about the person who made charges, this certainly would have been mentioned. Therefore, it can be assumed, as this is a respectable person and a lawyer
in Doboj, which is not a small town, that his function would have surely been
mentioned. Therefore, this Court believes that the defendant is not the person
mentioned in the article in question and that it is not clear why this person saw
using this name and last name without any other marks as an attack on him
and why he made charges.
In another example, the judgment of the Sarajevo Cantonal Court No. P-177/03,
in the case of Muminhodi dr. Kasim from Tuzla against the first defendant Arijana Saraevi-Hela from Sarajevo, the second defendant Bakir Hadiomerovi
from Sarajevo, and third defendant Federal Radio-Television of B-H from Sarajevo, also repudiated the claim because of the lack of identification of charged
persons and the exposition stated the following:
... with regard to the prosecution, it is only stated that today, Muminhodi is the
deputy of Mujkanovi. The result of the abovementioned is that the report explicitly says the defendant is in good relations with doctor Mujkanovi, that he was
the president of Municipality Board of SDA, that his authority was weakening in
his own party and that today he is the deputy of doctor Mujkanovi. Such statements are obviously not the statements which could cause any damage to the
plaintiff, as they are not defamatory. The person is not identified as someone who
took the money of humanitarian aid and opened a doctors office in Gradaac,
because the report clearly states that it is about Mujkanovi. In the proceedings,
the plaintiff claims that this was a mistake of the reporter and that viewers must
have thought that it was about him, as it was well-known that he used to be the
Minister of Health in the Canton and that he worked in the Health center Gradaac
and used the equipment in the center for diagnosis. The Court could not accept
150
24
In this case, the name of the plaintiff was probably misinterpreted because of
the mistake of the reporter. Therefore, it cannot be established that a third person (the public) could think that the expression in question in fact was related to
the plaintiff and that this is why there is no element of identification necessary
for one expression to be treated as a defamation.
IDENTIFYING DEFAMED GROUP

A particular problem is the case in which the expression in question refers to a
group of people. In the aforementioned case, judgment No. P - 75/03 ,the Sarajevo Cantonal Court rejected the statement of claim and stated the following:
Therefore, one of the elements which has to be fulfilled in order to get the expression which can be treated as a defamation is the existence of identification of a
natural or legal entity to a third person. This court considers that there is no such
element in the expression in question. Namely, the defendant in his statements
mentions Avaz and calls it a criminal media organization, he states that lies
made by Avaz are used to serve the political goals of the high representative and
that Dnevni avaz works by the measure of the new Bosniak mafia...it could be
said that they are the Al-Kaida of media, etc. Therefore, the defendant talks about
Dnevni avaz and Avaz, that is, about the daily newspaper and its publisher. The
statements do not contain any names of the plaintiffs. According to the practice
of European Court of Human Rights, individuals in a group can be authorized to
make charges for defamation on the condition of proving that they are personally
identified and directly affected. In this specific case, the opinion of this Court is that
plaintiffs are not personally identified to a third person, nor was it proven in the
proceedings that they were directly affected by the statement of the defendant.
Namely, the expression refers to Avaz in general and to Avazas a legal entity and
daily newspaper, and the defendant does not mention journalists of Avaz in his
statement, neither individuals nor a group. Instead he speaks about media organization and a group of people. This Court considers that the public, that is, the
readers of Dnevni avaz had no reason to identify all journalists of Dnevni avaz
with expressions given by the defendant. Therefore, there is no basis for the claims
Muminhodi Kasim v. Arijana Saraevi-Hela from Sarajevo, Hadiomerovi Bakir from
Sarajevo and FTV B-H Sarajevo (Sarajevo Cantonal Court No. P-177/03), 24 May 2005.
13
151
this because it was obviously an assumption and a guess about what the viewers could conclude and it was not a clear identification of the plaintiff to a third
person, that is, to viewers. On this occasion, it is not important whether this was
possibly a mistake of the reporter or he/she was uninformed about who actually
worked in the Health Center in Gradaac and who the Minister of Health was in
which period of time.13
of plaintiffs that they were labeled in the articles in question as members of terrorist and mafia organization because they are not identified as such to a third
person, that is, to the public. Hence, since there are no elements of defamation
stipulated by the Law, the expression in question cannot be seen as defamatory.
In another case, involving plaintiffs who were journalists of the Dnevni avaz
newspaper, the judgment of the Supreme Court of B-H G-2/05 states that the
statements of the defendant published on page 6 of daily newspaper Osloboenje
on 23 October 2002, and on page 5 of Nezavisne novine on 22 October 2002, according to the Court, refer to Dnevni avaz newspaper and Avaz as its publisher and
not to specific natural persons. Therefore, the statements of the defendant cannot
be treated as defamation of the plaintiffs which harmed the reputation of each of
them individually. For this reason, their request for compensation has no basis according to the Law on Protection against Defamation of the Federation of B-H, and
this is why the stance of the court of first instance expressed by rejecting the request
for compensation due to no basis was correct.
According to the practice of the European Court of Human Rights, individuals
in one group can still be authorized to make charges of defamation if they can
prove that they were personally identified and directly affected. Theoretically,
in case a defamatory expression referred to all members of some group (e.g.
if someone stated that all journalists were criminals or that all judges were corrupted) then all members of that group could make legitimate charges in order to receive damages, but in practice it would be difficult to prove that it was
precisely them who were harmed by a certain expression, hence the common
opinion is that even in these cases the Law should be applied restrictively when
it comes to limiting freedom of expression.
TYPE OF DAMAGE AND COMPENSATION

According to the provisions of entity Laws on Protection against Defamation
and the same law of the Brko District, the compensation is imposed exclusively
with an intention of compensation for the damage caused to the reputation of
the plaintiff, with a note that this compensation has to be proportional to the
damage which has been caused.
The Constitutional Court of B-H emphasized that every individual is characterized by the category of reputation, which is an integral and inseparable part of
his/her personality. Reputation is the regard of a person in a social community.
It is very important for the decision imposing the compensation not to have
a punishing nature in relation to the person who expressed a statement that
caused damage to another person. The compensation is imposed according to
152
25
Article 200. Law on Obligatory Relations

For physical pain and for emotional distress due to less life activities, violations
and due to harming someones reputation, honor, freedom of rights or rights of
a person, death of a close person, as well as due to fear, the Court shall, if it establishes that the circumstances of the case, and especially the severity of pains and
fears and the time they last are justifiable, impose a fair fine independently from
the compensation for material damage as well as if this was absent.
When deciding on the request for the compensation for immaterial damage, as
well as on its amount, the Court will take into account the importance of violated goods and the goal to which this compensation serves, but also the fact
that it is not contributing to tendencies which are not connected to its nature
and social purpose.
Pecuniary damages and the forms of compensation for pecuniary damages are
prescribed by articles 154, 155 and 189 of the Law on Obligatory Relations and
they can represent an ordinary damage and compensation for what was lost.
Non-pecuniary damages related to the violation of reputation are connected
with non-pecuniary goods, for a morally-psychological side of the personality
of the harmed person, and they are reflected in emotional distress suffered by
this person.
As seen in Article 1 of both entity Laws on Protection against Defamation, the
law does not specify the kind of a damage caused by harming the reputation of
a natural or legal entity. The following dilemma can be derived from this can a
legal entity suffer non-pecuniary damage caused by expressing or disseminating false facts?
When it comes to the questions not regulated by these laws, adequate provisions
of the laws regulating obligatory relations are applied, as well as those of the Law
on Legal Proceedings, and the laws regulating executive procedures in FB-H and
RS. This means that, in a concrete situation, it is possible to apply the Law on Obligatory Relations regulating the compensation for damage. According to Article 200,
paragraph 1 of the Law on Obligatory Relations, in order for non-pecuniary damage to be caused due to harming ones reputation, the condition of the existence
of emotional distress has to be fulfilled first. Legal entitys cannot feel emotional
distress and so they cannot deal the pains caused by harming ones reputation.
Law on Obligatory Relations, Official Gazette of SFRY No. 29/78, 39/85 and 57/89 and
Official Gazette of RB-H No. 2/92, 13/93 and 13/93 and Official gazette of Republika
Srpska No: 17/93 and 3/96, http://www.sava-osiguranje.rs/img/Zakon%20o%20
obligacionim%20odnosima.pdf (accessed 28 July 2011).
14
153
the rules of the Law on Obligatory Relations14 prescribing the forms of compensation in the case of a violation of reputation and honor.
Therefore, in some judgments, in case the reputation of a legal entity is harmed,

there can only be pecuniary and not non-pecuniary damage.
The example of this stance is he opinion of the Court given in the exposition of
judgment No. P - 1/04 of the Sarajevo Cantonal Court in 2004:
It is notorious that legal entitys cannot feel emotional distress, and so the emotional distress caused by harming the reputation. As the Law on Protection against
Defamation does not specify the type of damage which may be caused by harming the reputation of a legal entity, that is, as this issue is not regulated by this law,
it is thus subsidiary to apply the Law on Obligatory Relations. Therefore, the opinion of this Court is that in case the reputation of a legal entity is harmed, there can
only be pecuniary and not non-pecuniary damage. In its final words, the plenipotentiary of the plaintiff emphasized that the plaintiff determined the amount of
damage as a type of a fair compensation in the lump, and that pecuniary damage
could not be precisely established or specified because it was an abstract damage
which would be caused and which should certainly occur without proving and
determining in every concrete case. From the abovementioned, it can be derived
that the plaintiff in the statement of claim demands only non-pecuniary damage.
However, even if the Court accepted that the statement of claim referred to pecuniary damage, the plaintiff would still be rejected because during the procedure,
they did not prove that pecuniary damage occurred.15
26
However, the opinion of the Supreme Court of the Federation expressed in judgment No. G-22/05 on March 15th 2005, is the following:
Therefore, this Court notices that the lack of the complaint of the first plaintiff could
make it possible to sustain the decision with regard to the fine, even though the court
of first instance gave wrong reasons when it rejected the first plaintiff with his statement of claim. The reason for this is that Article 6 of the Law on Protection against
Defamation of FB-H in point 1, quite clearly states that every person who caused
damage to the reputation of a natural or legal entity by expressing or disseminating false facts while identifying this natural or legal entity to a third person, is responsible for defamation. It is not disputable that the first plaintiff is a legal entity.
Furthermore, this means that even the reputation of a legal entity can be harmed. It
is certainly not about emotional distress, but it is about the compensation for defamation. This is imposed both on legal and on natural persons because the basis is
the compensation, that is, the damage is caused by defamation.16
27
Contrary to this opinion, many lawyers think that the reputation of a legal
entity which has been harmed can in the end result only in pecuniary damZeko Ivica v. Slobodna Dalmacija (Travnik Cantonal Court P-1/04), 13 October 2005,
www.ksudnt.ba/sudska_praksa/P-1-04.doc (accessed 8 May 2012).
15
Applicant Junuz Cero, the Supreme Court of the Federation of Bosnia and Herzegovina
(G-22/05), 13 March 2005.
16
154
In court practice, it has been noticed that the demands derived from harming
ones reputation and honor are mainly directed at imposing the non-pecunairy
damages due to emotional distress which have been caused, whereas compensation for pecuniary damages is very rare.
AMOUNT OF COMPENSATION
The entity laws on protection against defamation stipulate that the compensation should be proportional to the damage caused to the reputation of a person
and that, while determining the compensation, all circumstances of the case
should be taken into account. What also needs to be taken into account are the
measures taken by the defendant in order to mitigate consequences such as:
publishing a retraction and taking back false facts or apologizing, the fact that
this person gained material benefits by expressing or disseminating the statement, as well as the fact that the amount of the imposed compensation could
cause great material difficulties or insolvency of this party.
The compensation for damage in civil procedures can, in some specific cases,
represent a clear interference into the realization of the right to freedom of expression. In the famous case of Tolstoy Miloslavsky17, the British Court decided
that the article written by the plaintiff in fact represented a defamation and requested that he, along with the distributor of the text, would pay to the victim
compensations in the amount of 1,500,000 British pounds.
28
Concluding that the amount of compensation was a a violation of Article 10,

the European Court considered that: it does not mean that the jury was free
to make any award it saw fit since, under the Convention, an award of damages
for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered. The jury had been directed not to punish the applicant
but only to award an amount that would compensate the non-pecuniary damage
to Lord Aldington [victim]. Also, the Court concluded that the scope of judicial
control, at the trial and on appeal, at the time of the applicants case did not offer adequate and effective safeguards against a disproportionally large award.
Accordingly, having regard to the size of the award in the applicants case in
conjunction with the lack of adequate and effective safeguards at the relevant
time against a disproportionally large award, the Court finds that there has been
Tolstoy Miloslavsky v.United Kingdom (18139/91), 13 July 1995, http://sim.law.uu.nl/
17
155
ages suffered by this legal entity due to the loss of the citizens trust in its
products and services. In any case, perhaps it would be the most appropriate
to solve this dilemma by a possible change of this Law.
a violation of the applicants rights under Article 10 of the Convention.18
29
In proceedings related to charges for defamation the defendants always think

that the amount of the compensation is in fact a punishment for them. When it
is pointed out to them that this is the amount determined as a compensation for
damage, they emphasize that it does not matter to them whether they will call
the amount to be paid a fine or a compensation for damage.
The amount of money imposed in Bosnia and Herzegovina for compensations
at this time are mostly mild; the average amount is less than 5,000KM. In most
cases, they fulfill the legal condition of not causing great material difficulties or
the insolvency of the defendants. However, people see these amounts differently, as some think that the amounts of compensation for damage are minimal,
while others believe that they are too large.
On this issue, the opinion of the Supreme Court of FB-H, as expressed in judgment No. G- 91/04, is the following:
The objections that the amount of non-pecuniary damage is too large are not valid
because the goal of compensation for non-pecuniary damage is for the plaintiff to
be provided with the satisfaction which would compensate for the non-pecuniary
goods of which he/she was deprived, that is, to provide such satisfaction which this
person would have had, had there not been the harmful event. In that sense, the
compensation is only a satisfaction for this damage, hence this Court, too, considers that the compensation of 5,000KM is appropriate and that the defendants are
obligated to compensate to the plaintiff with solidarity.19
30
A specific problem is the way in which the amount of non-pecuniary damage

caused to the plaintiff will be determined in legal proceedings in case there is defamation. The situation becomes more complicated as, according to entity laws on
legal proceedings, there is an exclusive disposition of the parties related to propose
the evidence, as the principle of pecuniary truth is partially abandoned. Therefore,
in some cases where plaintiffs were not able to submit the evidence regarding the
circumstances of the amount of damage, since they established that the damage
was certainly caused, the courts of first instance freely assessed its amount.
The Supreme Court of FB-H accepted this and its several judgments stated that,
in relation to the amount of the determined non-pecuniary damages, it found
that the court of first instance correctly applied the provision of the Law on Legal
Proceedings when it determined the amount of compensation according to its
discretion. Also, it was said that the existence of damage is assessed according
18
Ibid.
Decision on merits, applicants: Radio-Television of the Federation of Bosnia and Herzegovina and Bakir Hadiomerovi (the Supreme Court of the Federation of Bosnia and
Herzegovina: G- 91/04), 26 October 2004.
19
156
While solving the appeal to one of the judgments of the Sarajevo Cantonal Court,
confirmed by the judgment of the Supreme Court of FB-H, the Constitutional
Court of B-H, in the AP 1145/04 case, repudiated this appeal as it was not based
on Article 2/3.e) and 2/3.h) of the Constitution of Bosnia and Herzegovina, and to
Article 6, paragraph 1 and Article 10, paragraph 1 of the Convention of Human
Rights and Fundamental Freedoms. In this case, the applicants thought that the
court of first instance did not correctly apply the provisions of Article 127 of the
Law on Legal Proceedings, which authorizes the Court to determine the amount of
damage according to its discretion of the court. The decision stated the following:
Constitutional Court concludes that in the concrete case, the way in which Cantonal
and Supreme Court interpreted positively-legal provisions cannot be considered arbitrary and it does not represent a violation of constitutional rights of the applicants.
Both decisions that were contested state all necessary reasons and give detailed explanations. Also, there are no other elements which could indicate to the fact that
the procedure was unjust, and the applicants did not challenge any procedural action in the proceedings of making contested decisions.20
31
There are more casesin which the applicants believed that regular courts did not
correctly apply the provisions of Article 127 of the Law on Legal Proceedings, that
authorize courts to determine the amount of damage according to their own assess. At the same time, courts would be accepting the statements of the plaintiff
that by publishing the text in question the plaintiff suffered damage, without
any evidence found in relation to such circumstances. The Constitutional Court
of B-H had a different opinion.
This is how in the case No. AP 1289/05, the Constitutional Court decided to
adopt the appeal against the judgment of the Supreme Court of the Federation
of Bosnia and Herzegovina No. G-17/05 and the judgment of the Sarajevo Cantonal Court No. P-24/04 and established that there was a violation of the right to
fair trial of Article 2/3.e) of the the Constitution of Bosnia and Herzegovina and
of Article 6, paragraph 1 of the Convention for the Protection of Human Rights
and Fundamental Freedoms, overruling the abovementioned judgments.
In this decision, Constitutional Court states:
Decision on appeal, applicant: Pres-Sing d.o.o. Sarajevo, Senad Avdi and Mirsad
Fazli (Constitutional Court of Bosnia and Herzegovina: AP 1145/04), 2 December 2005,
http://www.ccbh.ba/bos/odluke/povuci_html.php?pid=26391 (accessed 12 January
2012).
20
157
to adopted social norms and measures, and not according to how much the person to whom the defamation referred is hurt subjectively. It is important for the
Court to establish beyond doubt that the stating of false facts could harm the
reputation and honor of the plaintiff. Therefore, the amount of damage caused
is objectified in a certain way.
In the specific case, regular courts did not establish relevant facts of legal basis for compensation for damage, instead, they arbitrarily concluded that damage occurred and
the applicant was liable, which caused the violation of the right of applicant to fair trial.
As for the claims of the applicant regarding the violation of Article 10 of the Convention, Constitutional Court considers that regular courts in challenged judgments made
a right distinction between what represented value judgments and facts in relation to
the published information, and that they did not cross the allowed degree of discretion
of the court in this regard. However, as they did not establish the means correctly, in this
case of compensation, in order to protect the goal, or in this case the plaintiffs right to
truth, they did not fulfill the necessary condition for examination of the principle of proportionality between the means and the goal. This condition must be fulfilled when it
comes to allowed interference into the right to freedom of expression.21
32
In the exposition of the decision of the Constitutional Court of Bosnia and Herzegovina for case No. AP 1454/06, what can be observed are the basic principles
that courts should follow when determining the amount of caused damage. This
decision, inter alia, states the following:
As it was said before, the courts established that the applicant committed defamation against the second plaintiff, which certainly harmed his non-pecuniary goods
the reputation, which caused damage to this person. The object of such damage
is non-pecuniary goods related to morally-psychological part of the personality
of the plaintiff, which is why the compensation for non-pecuniary damage is not
compensation in the very sense of that word, as it does not provide the state which
existed before the damage, thus its goal is not reparation. On the contrary, the compensation for non-pecuniary damage is one of the kinds of satisfaction given to the
person who suffered the damage of violation of non-pecuniary goods. The assess
of the compensation for non-pecuniary damage is a very delicate and complicated
procedure because there is no general measure considering a very different morallypsychological constitution of each individual as well as considering other circumstances in which the damage occurred and harmed the non-pecuniary goods of the
plaintiff. Therefore, it cannot be expected that there will be exact ways and methods
to establish the intensity and duration of non-pecuniary damage caused so as to
determine the amount of damage caused in such way. However, even though while
estimating the amount of compensation for non-pecuniary damage, courts have
the right to discretion of the court. This discretion of the court is not absolute which
is expressed in Article 200 of the Law on Obligatory Relations according to which
the court assesses the significance of damaged goods and the goal of the compensation by taking into account the circumstances of the concrete case. From the
perspective of Article 10 of the Convention, Constitutional Court notices that the
Decision on merits and permission, applicants: Pres-Sing d.o.o. Sarajevo (Constitutional Court of Bosnia and Herzegovina: AP 1289/05), 9 November 2006, http://www.ccbh.
ba/bos/odluke/povuci_html.php?pid=54194 (accessed 12 January 2012).
21
158
33
Therefore, the discretion of the courts with regard to the amount of compensation for non-pecuniary damages is limited by the principle of proportionality
expressed in Article 10 of the Convention, demanding that the reasons and justifications given by courts regarding their interference in the right to freedom of
expression are relevant and sufficient, and that courts base their decisions on an
acceptable analysis of relevant facts.
Which means would be appropriate to prove the existence of non-pecuniary
damage caused by harming the reputation and honor of one legal entity?
Some believe that, in such cases, an opinion related to the circumstances of
emotional distress should be given by an expert neuro-psychiatrist. Others believe that it is sufficient to hear the plaintiff as a party in a procedure and possibly a witness, determining the existence and level of non-pecuniary damage
caused in this way. These are very disputable issues in court practice and there
are different ways of dealing with them.
LIABILITY FOR DEFAMATION

Article 6, paragraph 1 of the Law on Protection against Defamation of FB-H23
stipulates that every person causing damage to natural person or legal entity
by expressing or disseminating false facts when identifying this natural or legal
entity to a third person is liable for defamation. On the other hand, paragraph 2
34
Decision on merits, applicant: Sarajevska Pivara (Constitutional Court of Bosnia and

Herzegovina: AP 1454/06), 17 November 2008 godine, http://www.ccbh.ba/bos/odluke/povuci_pdf.php?pid=171357 (accessed 12 January 2012).
22
23
Supra note 1.
159
decision of the court on the amount of compensation for non-pecuniary damage

can violate the principle of proportionality between the interference of courts into
freedom of expression and the importance of interest which they want to achieve by
limiting this freedom. In that sense, European Court of Human Rights, too, concluded that the very amount of the compensation for damage is a violation of Article
10 of the Convention, because it does not mean that the jury was free to make any
award it saw fit since, under the Convention, an award of damages for defamation
must bear a reasonable relationship of proportionality to the injury to reputation
suffered. (see European Court of Human Rights, Tolstoy Miloslavsky against the
United Kingdom, judgment from 1995). Beside this, the Constitutional Court in its
practice concluded that it is necessary that when establishing the existence of legal basis and the amount of compensation for defamation, courts should consistently apply the principles from relevant provisions of adequate Law on Obligatory
Relations, Law on Protection against Defamation and Law on Legal Proceedings,
respecting the specificity of every case so as to avoid arbitrariness in their actions.22
of the same regulation states that the author, editor, publisher and the person
who supervised the content with such expression in some other way are all liable for defamation expressed in the mass media.
Article 5 of the Law of RS24 prescribes that there is a liability for defamation if a
person capable of work causes damage to the reputation of another natural or
legal entity by identifying this person to a third person if they caused damage as
authors, editors or publishers of the expression or as persons who, in some other
way, efficiently controlled the content, just as the legal entity that published the
expression.
35
As it can be seen, there is a small difference in the way in which entity laws regulate the liability for defamation, but this difference can be significant in some
specific cases. The main criteria when determining the liability are: working capability (which is not explicitly stated in the Law of the Federation and is implicit
instead), false information, causing damage, availability of this information to a
third person and the existence of intention or carelessness.
The dilemma arises primarily with regard to the term author, that is, who can
be treated as author in an individual case when a certain expression is disseminated in the media. The County Court in Banja Luka faced this issue when issuing judgment 71 0 P 033381 09 G in 2009, where letters containing allegedly
defamatory expressions were sent to the dean of a faculty and to OHR and were
later published in the media. The defendant was the person who wrote and sent
these letters. The court of first instance adopted the requirements of the plaintiff considering the defendant as the author, but the court of second instance
rejected this. The County Court in Banja Luka concluded that the defendant,
even though she wrote the letters containing statements that could represent
defamation, was in fact not the author in the sense of Article 5 of the Law of RS25,
because this expression was given in the media and she is not the author, the
editor, nor the publisher.
36
WHO IS THE AUTHOR OF AN INTERVIEW?

Such stance of the court practice brings one of the biggest dilemmas in the
application of law, that is, the question of whether the person who was interviewed or who made some other type of a statement for the media is the
author of this statement and whether this person can be liable for it, beside
journalists, editor in chief and other persons who in some other way efficiently
controlled the content of this expression. The Law of the Federation makes a
24
Supra note 2.
25
Ibid., Article 5.
160
In the legislation and court practices of other European countries there is not a
dilemma in such cases. Namely, it is considered that, primarily, the person making a statement is liable, and only after that there are there possibly liable persons working in the media that published this statement.
This seems logical because it would be unfair and inappropriate, for example,
when recording one event or when there is a live program in which someone
makes a defamatory statement, for this person not to be liable for their statements and to consider the editor in chief as the liable person instead, when this
person could not do anything or could do very little to prevent such expression.
Also, in practice, there are almost no clear cases when the prosecutions requirements are made because of the statement that was not published in the media
and for which there could be a liability of every person who states or disseminates it.
WHEN JOURNALISTS DISTANCE THEMSELVES FROM INTERLOCUTORS

The European Court gave a very detailed opinion on this matter in the case of
Jersild vs. Denmark26 in 1994. In this case, Danish courts charged journalist Jersild
because he brought the representatives of ultra-rightist skinhead organization to
a television show and let them discuss their program in order for Danish public to
see what this group does, in a television show intended for educated people; what
his guests later on stated on his show was without any doubt hate speech.
37
The Supreme Court of Denmark still charged him for this. However, the European Court of Human Rights found that this violated his right to freedom of
expression because it was not him who expressed those ideas. Instead, as an
illustration, he brought the people who spread such ideas considering that the
society should know something about it, including the fact that they are dangerous. By this, the Court meant that the disputable report was broadcast as
the part of a serous informative TV program and that it was intended for a wellinformed audience. Among other, the judgment states the following:
News reporting based on interviews, whether edited or not, constitutes one of
the most important means whereby the press is able to play its vital role of pubJersild v. Denmark (15890/89), 23 September1994, http://cmiskp.echr.coe.
int/tkp197/search.asp?skin=hudoc-en (accessed 18 July 2011).
26
161
greater distinction between the liable person who made a statement which was
not published in mass media and the liable person when the expression reaches
the media; the restrictive interpretation of this provision would say that the person who was interviewed for a print media or who was recorded in an electronic
media when making a statement cannot be liable for defamation.
lic watchdog. The punishment of a journalist for assisting in the dissemination of

statements made by another person in an interview would seriously hamper the
contribution of the press to discussion of matters of public interest and should not
be envisaged unless there are particularly strong reasons for doing so.27
38
It is important to say that the Court established that the introduction made by
the host, as well as the behavior of Jersild during the interview, clearly made a
distance between him and the people he interviewed. For example, describing
these people as members of the group of extremist youth supporting the Ku
Klux Klan, Jersild also rejected some racist statements. This could be a good example of how one should act in the case where the person who was interviewed
(for newspapers or for electronic media) expresses a statement that can be defamatory or even treated as hate speech. When there is a distance from such
expression or if it is discussed by using arguments, it lowers the risk for journalist
or a TV host in electronic media to be liable for the disputable expression.
In some judgments of cantonal courts in the Federation, people who were interviewed for the media were also liable (which naturally does not exclude a possible solidarity in liability of the editor in chief, publisher as well as persons who
were in some other way supervising the content of this expression). In one of
these cases, the judgment of the Supreme Court of Federation of B-H, Number
G-132/04, confirms such opinion. The exposition of this judgment states the
following:
Therefore, the gravity of the defendants act (causing damage to the reputation of
the plaintiff by defamation) is assessed only on the basis of what the published article quoted as his statement, and the rest, the tone of the title, subtitle and other parts
of the content could not be attributed to the gravity of the defendants defamation
(having in mind the provisions of Article 2, paragraph 6 of the Law on Protection
against Defamation).
From all that was mentioned above, it could be derived that the person who was
interviewed or who made a statement is liable for the statement quoted in the
media.
However, on the other hand, in judgment G-155/05 the Supreme Court of FB-H
expressed a different opinion In this case, the defendant was interviewed for
newspapers. The decision of the Supreme Court of FB-H, confirming the decision of the court of first instance, Cantonal Court, which repudiated the requirements of the prosecution, states: -there are no elements of defamation given in
Article 4, point d of the Law on Protection against Defamation of Federation of B-H,
hence there is no civil liability of the defendant for the compensation for damage.28
The reason why the Spreme Court stated that there were no elements of defa39
27
Ibid.
28
Judgment of the Supreme Court of FB-H, No. G-155/05, 22 December 2005.
162
40
41
The opinion of the Supreme Court of Croatia is completely opposite and, in

judgment number K- 1940/71 it states:
When the defendant was interviewed and made a statement for editors and journalists with a clear and an only goal of his statement and his fords to be published
in the press, then such making statements to journalists is equal to writing for newspapers hence such expressions has to be treated as the authorization of articles in
newspapers which disseminates such statement. Therefore, such case is related to
stating or disseminating in the press in the sense of Article 169, paragraph 2, KZ,
hence the County Court is in charge of this trial on the basis of Article 140 of the Law
on Press and Other Types of Informing.
We believe that such stance is correct and that the changes of entity laws (which
are not precise enough in this regard) or changes in court practices should solve
this dilemma so that the person who is interviewed or who makes a statement
for the media is liable for this expression just as it is the person whose expression
was not published in the mass media.
DISSEMINATION OF EXPRESSIONS
Law on Protection against Defamation of FB-H31 states that defamation occurs
if damage is caused to ones reputation by stating or disseminating false facts,
while the Law of RS32 prescribes that defamation is stating or disseminating
something false which can harm the reputation of one person33, and that dissemination occurs when the information from someone else is stated or spread.34
42
43
44
45
Therefore, our laws explicitly state that defamation occurs when someone elses
false and harmful expression is delivered or disseminated. Representatives of the
media that published the disputable statement very often emphasize that it was not
29
Supra note 1.
30
Supra note 28.
31
Supra note 1.
32
Supra note 2.
33
Ibid.
34
Ibid.
163
mation was the application of paragraph 2, Article 6 of the Law on Protection

against Defamation of FB-H, which says that for defamation made through media outlets the following are jointly responsible: author, editor, or publisher of the
expression or someone who otherwise exercised control over its contents.29 As the
defendant is not the author in this case he was not passively legitimized in the
subject when the expression appeared in the mass media,30 thus he was not considered liable for damage suffered by the plaintiff.
them who delivered such statement and that they took it over from another media
hence they believe that they are not liable of damage caused. It is certain that this
opinion is essentially wrong and that there is liability for disseminating such expression without any doubt, in line with the abovementioned legal provisions.
However, this does not mean that every type of dissemination of false statements will be sanctioned. Instead, when discussing a particular case, the circumstances of the occurrence of defamation will be considered. With regard to this
issue, according to generally accepted international standards, it is considered
that journalists still have the right to take over from other media information
which can harm someones reputation, if such information is correctly quoted
with an appropriate amount of carefulness, as well as if the party to which the
disputable expression refers has the opportunity to comment on it and to react.
In the 2001 case of Thoma v. Luxembourg35, there was a radio journalist who was
sentenced to pay one franc to each of 63 plaintiffs because of the harm caused
to their reputation in radio program. Thoma based his defense on claims that
he only quoted an article of a colleague journalist, but Luxembourg courts still
sentenced him because he did not distance himself from disseminated statements that all members of Forest Committee of Luxembourg were corrupted.
The program did not list all plaintiffs, but considering the size of Luxembourg,
the public was clear about who these people were.
46
The European Court established that the program dealt with a controversial
topic that was the widely debated in the media and that it was a matter of public interest. The Court also determined that the decision of domestic court was
based on Thoma, quoting the article of another journalist in the radio program.
Therefore, the European Court decided that the judgment that obligated the
journalist to pay compensation for damage of reputation by disseminating
statements of other journalist was contrary to freedom of expression ensured
by the Convention36, and it emphasized that journalists are:
47
systematically and formally to distance themselves from the content of a quotation

that might insult or provoke others or damage their reputation was not reconcilable
with the presss role of providing information on current events, opinions and ideas.37
3648
In its practice, the European Court of Human Rights also concluded that there was
a violation of Article 1038 of the Convention when two journalists were sentenced
because they published information on financial and tax situation of a manager
49
Thoma v. Luxembourg (38432/97), 2001, http://cmiskp.echr.coe.int/tkp197/search.

asp?skin=hudoc-en (accessed 28 July 2011).
35
36
37
Ibid.
38
Supra note 35.
164
50
51
Another decision made by the Supreme Court of Croatia, I K-670/76, is also interesting as it clearly shows that the court was in no doubt that dissemination of
expression could be defamation. The decision states:
The act of defamation is not only making or stating something that one person
learned on their own or a belief acquired by their own observations, it is also disseminating or stating someone elses information or opinion.
In practice, it often happens that some media outlet publishes a disputable statement, another disseminates it non-critically, and then a person who suffered damage makes charges based on defamation only against the latter media. This is when
liable persons in the media state that it is unjustifiable if only they go to court and
base their defense on the fact that the information in question has already been
published in another media and that the plaintiff should have made charges against
that media. However, those harmed by statements have a full right to choose whether they will sue all media that published this expression or only some of them. These
persons can justifiably state that the damage was caused to them mostly when the
information was repeated in another media (dissemination of expression) and not
when the original statement was published. For example, they can claim that it is
precisely the second newspaper disseminating the expression is the newspaper
with a bigger circulation or a bigger influence or it is sold in the town where this
person lives, or that the program which disseminated the expression has a bigger
viewership and hence damage is bigger than the one in the first program.
The decision of the Supreme Court of the Federation, G-20/05 in 2005, explicitly
shows the opinion regarding the liability for dissemination of false expressions
from other media, hence its exposition states the following:
The act of defamation also occurs when texts and writings from other magazines
are used, and when these texts and writings are not well-founded and true, thus such
circumstances (disseminating writings from other magazines) does not exempt the
defendants from liability of pecuniary damage that has been caused, which is contrary to what the applicants claim. Whether and whom the plaintiff sued in relation
to initial publication in other newspapers do not exempt the defendants from liability for what they published in their own magazine as responsible people. Although
Fressoz and Roire v. France (29183/95), 1999, http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (accessed 28 July 2011).
39
Weber v. Switzerland (11034/84), 1990, http://cmiskp.echr.coe.int/tkp197/search.

asp?skin=hudoc-en (accessed 28 July 2011).
40
165
of a big company, although such information was easily accessible through public
tax books (Fressoz and Roire v. France39, 1999). The same violation occurred in a
case where journalists and environmental activists were sentenced because they
jeopardized court investigation on a press conference, but the facts were available
to the public even before the press conference (Weber v. Switzerland40, 1990).
other media, too, according to the appeal, harmed the reputation of the plaintiff in
their writings it does not affect a civil-legal liability of plaintiffs for what they did.
In case No.P-117/03 of the Sarajevo Cantonal Court (which has already been discussed),
the plaintiff disseminated the information about person with the same name and surname, which was already published on one web portal, hence the defendant stated
that this made him free of liability and the written response to the charges he stated:
the information in the challenged text was thoroughly verified several times. The
source of information were documents of State Commission for Gathering Facts on
War Crimes in Bosnia and Herzegovina and the document called War crimes of Serbian forces against Croats and Muslims in the region of Bosanska Posavina area of
Doboj from which the statements of witnesses of committed crimes were taken. The
same information appeared on a Croatian web portal www.Ljubija.hr/ratni zloini,
and it was provided by the witnesses of persecution in Doboj.
As it can be seen, the media against which the charges were made considered
that, as the disputable information was published in several places, it was certainly true, which was proven to be false. The sources that initially published
these facts inaccurately named the plaintiff and this mistake was repeated by
the media that non-critically disseminated the expression. The plaintiff chose to
press charges against this media as he believed that publishing this statement
in that media caused real damage while publishing it on a web portal and the
abovementioned publication did not.
EXEMPTIONS FROM LIABILITY

Article 6 of the Law of RS41, Article 7 of the Law of FB-H42
52
53
The following cases will not be treated as liable for defamation:

a) If there is the expression of opinion or if the expression is substantially true;
b) If the person who allegedly caused damage was obligated by Law to state
or disseminate the expression or to state or disseminate the expression during
legal, court or administrative proceedings;
c) If stating or disseminating the expression was reasonable.
When one court makes such decision, it takes into consideration all the circumstances of the case, especially including: the way, form and time of stating or disseminating the expression, the nature and level of damage caused, probability of damage
being caused even if the expression was not stated or disseminated, data whether
41
Supra note 2.
42
Supra note 1.
166
The given provisions of the Law thus stipulate the possibility of being free of
charges related to the possible defamatory statement even if the reputation of
a third person is damaged by inaccurate statement. The function of these provisions is to follow the standards of international law with regard to limiting the
freedom of expression and they contribute to the basic tendency of the law that
this limitation should be applied restrictively as much as it is possible.
As the circumstances under which someone is not liable are set in a descriptive
manner and they can be interpreted in various ways, the journalists and other
people making statements have to pay attention to these circumstances and
try not to cross the line prescribed by the framework. Then the courts have the
task of assessing these circumstances when deciding whether a statement is
defamatory or not. The main rule is that there cannot be a liability for expressing
ones opinion, that is, value judgments.
Also, when adjudging the compensation for damage caused by defamation, it
would be impossible for the author of the expression to prove that the statement is true, whereas the request of proving that a factual statement is substantially true (in accordance with reasonable standard of proving) would be in line
with Article 10 of the Convention.
The Law prescribes that there cannot be a liability for statements made in a parliament or in a court during the procedure, which functions as the protection of
a democratic political debate as well as the fairness and efficiency of procedures
before courts, and these provisions are not disputable in the practice. However,
there are still dilemmas related to what formulation can statements during administrative procedures contain.
This provision has been interpreted in a wide sense so far. There was a case where
there was a demand for compensation for damage caused by a statement made
by a dean of one faculty during a faculty meeting and published on the board of
the faculty. In this case it was established that there was no defamation because
the expression was stated as a part of the function of the dean [bolding by author]. In this case, the judgment of the Sarajevo Cantonal Court number P 19/03,
later confirmed by the judgment of the Supreme Court of FB-H, stated that expressing critical opinion at the faculty meeting cannot be treated in any way as
a defamatory expression in the sense of the Law on Protection against Defamation
of FB-H,43 because the dean was doing his job at the time. Moreover, if bodies in
charge treated this expression as defamation, then its decisions would be entirely
opposite to the goals of the Law on Protection against Defamation of FB-H, which
54
43
Judgment of Sarajevo Cantonal Court No. P-19/03, 10 May 2005.

167
the expression contains objective and accurate information about the expression
of other people and whether it refers to the issues from private life of the damaged
person or the issues of political or public importance.
ensures the principle of freedom of expression.

Also, in the subject when the defendant was the minister of inner affairs of the
Federation of B-H, because of the expression stated in one official letter, the
judgment of the Sarajevo Cantonal Court number P-163/03, stated that the
letter was written within the authorizations of the first defendant as Federal
minister. Also, this Court reiterates that the stance regarding this official communication, too, between the officials of state organs can represent the basis for
defamation in the sense of the Law on Protection against Defamation of FB-H,
which would be the violation of the main principle of freedom of expression.44
Due to these reasons, the defendant was free of charge.
55
PUBLIC INTEREST AND ACTING WITH BONA FIDE

When dealing with the 1999 Bladet Troms and Stensaas v. Norway45 case, the
judgment of the European Court dealt with published texts that criticized the
technique of seal hunting on one ship. The Court established that it was necessary to carefully analyze the cases when measures or sanctions applied by one
state can discourage the press in participating in discussions about the matters of a legitimate public interest. The Court took into account the fact that
newspapers ensured a fair reporting on the subject by publishing all points
of view, including those of the seal hunters. Secondly, it took into account
the fact that the goal of publishing these texts was not to accuse someone of
anything, but to contribute to public debates. Thirdly, when establishing that
journalists have to act in good faith, the newspaper was not obligated to verify
the official report by independent research.
56
The Court concluded that the crew undoubtedly wanted to protect their
interests and that this could not be stronger than a vital public interest in
providing informative public debate about the questions of local, national
and even international interest. The judgment of the Court emphasized the
following:
However, it is important for the Court to realize whether in one specific case journalists acted in good faith with a goal to provide public with correct and reliable information in accordance with the code of ethics of journalists.46
57
Accordingly, if the Court established that the statements were partially untrue
44
Judgment of Sarajevo Cantonal Court No. P-163/03, 18 October 2004.
Troms and Stensaas v. Norway (21980/93), 20 May 1999, http://sim.law.uu.nl/SIM/

CaseLaw/hof.nsf/2422ec00f1ace923c1256681002b47f1/887a2420f72746ebc125678
3003c2213?OpenDocument (accessed 18 July 2011).
45
46
Ibid.
168
Related to this, journalists cannot be asked to verify the information to the same
level as other persons, because in this way they would most often not be able
to do their job well. It is important to understand this correctly, because it does
not mean that it is not needed to make big efforts and to be professional when
establishing the facts relevant for a disputable statement. It means that the level
of verification of information does not have to be at the same level as in the case
when these facts are established by state bodies in a procedure prescribed by
law (e.g. police, prosecution or the inspection in charge).
This is also the opinion of the Supreme Court of Serbia, expressed in judgment
No. Rev. 3139/2007 on 19 March 2008. The exposition of the judgment states:
It is enough to freely express and publish the information after it is verified that
it is true in accordance with appropriate circumstances of the specific case, that
is, in accordance with the attention of journalists. In this case, before publishing
one article which contains the data about certain events and persons (plaintiffs),
a journalist has verified the source of information so that Article 3 of the Law on
Public Information is not violated. When writing an article, journalists respected
the principle of other side to be heard so that she acted entirely with a due consideration (by conducting verification appropriate to given circumstances).
The judgment of the European Court of Human Rights related to the 1991 case
of Sunday Times vs. United Kingdom47, (which will be mentioned later) stated
that news has an expiration date and if it is published with delay, even with a small
delay, it can be deprived of every value and interest to a significant extent. Therefore, journalists will often find themselves in the situation of publishing information even if they do not have enough time to verify it more thoroughly and to
hear the version of the other side. Also, the abovementioned standards with
bona fide will make it easier for journalists to determine whether a statement is
defamatory in case it appears not to be entirely true.
58
VERIFICATION OF FACTS
A good example of the European Court concluding that journalists, that is, the
persons liable for an expression, did not follow the standards of behavior that
could make them excepted from liability is a newer judgment, the 209 case
Sunday Times v. United Kingdom (13166/87), 1991, http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (accessed 18 July 2011).
47
169
or that they were too harsh, but well-intended, it could be considered that conditions for liability for defamation were not fulfilled (naturally, if other conditions were fulfilled, such as following professional standards by the person who
causes damage and especially if the expression referred to the issues related to
private life of the damaged person or to the matters of public importance).
of Europapress Holding d.o.o. vs. Croatia48. In this case, on February 2nd 1996,
Globus magazine published an article about the incident which allegedly happened in the building of the Government of Croatia involving the minister of
finances, vice-president of the Government and a journalist of daily newspaper
Novi list. The article was published in column Political terminator (Politiki terminator) and reported on a conversation between the minister and the journalist on the stairs of the building when the minister said that the journalist should
be killed because of an article she wrote before. According to the article, the
minister then followed the journalist and allegedly took a gun from the security
in press conference room and pointed it at the journalist, saying that he would
kill her and then laughed at his own joke.
59
After the article was published, the minister started a civil lawsuit based on
defamation against the applicant before the Municipal Court in Zagreb. He
asked for a compensation of 500,000HRK for non-pecuniary damage. He
claimed that the published information was not true and that it harmed his
reputation as a public and political figure as the article was published in newspaper with a great circulation. Also, he claimed that this article portrayed him
as an irresponsible and unreasonable person who made bad and distasteful
jokes. On the other hand, the defendant insisted that the published information was true and well-founded since there were reasons for its veracity. The
judgment of the Municipal Court partially confirmed the statement made by
the plaintiff with an explanation that the published information was false and
that the applicant did not verify it properly,49 and a compensation of 100,000
HRK was adjudged.
60
The County Court in Zagreb confirmed the judgment of first instance but lowered the amount of the compensation to 60,000 HRK. During the procedure of
revision of the judgment in the court of second instance, the Supreme Court of
Croatia rejected the revision of the applicant and confirmed the reasons given
in judgments of courts at lower level. Finally, the Constitutional Court of Croatia
rejected the constitutional charges made by the applicant, and it established
that there was no violation of its constitutional right to freedom of expression.
After this, in May 2006, the Europapress Holding d.o.o. company submitted an appeal to the European Court claiming that the judgments of domestic courts violated
its right to freedom of expression. The judgment of the European Court stated the
following:
The article was written in a manner leaving the reader in no doubt as to the truthfulness of the published information and made no reference to its source. Therefore, it
cannot be said that the Globus journalist who wrote it was merely reporting what
48
Supra note 10.
49
Ibid.
170
The Court observes at the outset that in the above civil proceedings for defamation
the applicant company was given an opportunity to prove the veracity of the published information. Contrary to the applicant companys claims concerning the assessment of evidence and the standard of proof used by the domestic courts in those
proceedings, the Court considers that this task was not unreasonable or impossible
in the circumstances. (...)
The Court notes on this point that neither in the domestic proceedings nor in the
proceedings before the Court did the applicant company adduce any evidence in
support of its claim that the Globus journalists attempted to contact B..s office. (...)
The Court reiterates that where particularly serious allegations have been made by
one of the parties to a dispute, particular vigilance is called for. In such situations
journalists, rather than automatically giving credence to such allegations, should
ascertain whether they were true by obtaining further information and, if appropriate, by hearing the other sides version of the facts. (...)
The Court is unable to follow the applicant companys argument that awarding
damages in the present case was disproportional to the legitimate aim pursued
because there were a number of other less strict measures available to persons
whose reputation had been tarnished by published information. Having regard
to the margin of appreciation left to the Contracting States in such matters, the
Court finds in the circumstances of the present case that the domestic courts
were entitled to consider it necessary to restrict the exercise of the applicant
companys right to freedom of expression and that ordering it to pay damages
met a pressing social need.
Finally, the European Court concluded that:
..the reasons given by the domestic courts in support of their decisions were relevant and sufficient and that the damages the applicant was forced to pay were not
disproportional to the legitimate aim pursued. Therefore, the interference with the
applicant companys freedom of expression was necessary in a democratic society.
There has accordingly been no violation of Article 10 of the Convention.50
61
This judgment shows that the European Court assesses whether journalists
made adequate efforts to establish whether all published statements were true,
nor did they make an effort to hear the version of the opposing side. This can be
the principle for journalists to follow in similar situations.
50
Ibid.
171
others had said and had simply omitted to distance himself from the information
Rather, he adopted the offending allegations as his own, and the applicant company which published them was therefore liable for their veracity. (...)
REPORTING ABOUT ONGOING COUR PROCEEDINGS

In the domain of reasonable stating or disseminating of a statement as the basis
for making someone free of charges for defamation, a special question would be
the one of how reasonable or justifiable can be to state an expression which represents one person as a criminal. We are witnesses that every day in the media
there are certain persons qualified as people committing criminal acts although
it is obvious that those people were not convicted by the court in charge. This
means that the presumption of innocence, one of the basic principles of the law,
is not respected.
Regarding this issue, the Constitutional Court of Bosnia and Herzegovina, in
case number AP 1289/0551, still adopted the appeal, but due to the violation
of the right to fair trial and not due to the violation of the right to freedom of
expression. It states the following:
62
this Court states that the principle of the presumption of innocence has to be respected in information provided by press, too, hence making statements such as
these, while citing the freedom of expression and information, cannot be allowed....
regular courts assess that the applicants have crossed the allowed line when dealing
with freedom of expression and the necessary tolerance of the plaintiff, that is, that
the applicants expressed the facts which were not proven true as if they were true.
The Constitutional Court considers that it cannot be concluded that regular courts
crossed the line of the allowed discretion when it comes to the assessing whether
the applicants committed the act of stating the facts which were not proven true.52
63
Therefore, the main rule is that, when making a statement, no one can be accused of committing a criminal act in case they are not charged with an absolute
criminal provision. This rule is certainly often violated and, theoretically, every
such expression is defamatory and it succumbs to liability. However, there are
some situations when such expression can be reasonable in the sense of the
provisions of the Law on Protection against Defamation that regulates freedom
from liability. These are, for example, the cases where there is a criminal procedure against the person at whom the statement is directed, meaning that there
is a certain level of doubt whether this person is in fact liable.
This is how the Sarajevo Cantonal Court issued in case number P 39/03 of October 2004 an order stopping the legal proceedings in this legal matter, and it
will be continued after the absolute criminal procedure against the first plaintiff
ends. Namely, after the insight into the charges of the Zenica Cantonal Court,
Pres-Sing d.o.o. Sarajevo and Senad Avdi in Official Gazette of Bosnia and Herzegovina No. 60/05, http://www.ccbh.ba/bos/odluke/index.php?src=2 (accessed 8 December
2011).
51
52
Ibid.
172
64
65
Therefore, the Court stopped the procedure until the criminal procedure was
over, when it was supposed to be clearly determined whether the expression
accusing the plaintiff was in fact true. In that case, this would not be defamation. Such solution can be seen as appropriate, although, if we observe this in
a strictly theoretical way, everyone is considered to be innocent until they are
charged with absolute provision, even in an ongoing criminal procedure.
The idea behind such act is that many cases can reasonably qualify one person as a criminal if there is an ongoing criminal procedure, because the state
organs in charge, that is, police and prosecution established a certain level of
doubt that this person is liable for a criminal act. This can be applied particularly
on expressions where individuals are treated as war criminals. Every day we are
witnesses of such formulations appearing in the media, and, on several occasions, there were hot debates about who can and who cannot be called a war
criminal. Whereas one side believes that it is atrocious to call someone a war
criminal if this person was not convicted, the other side emphasizes that in that
case not even Hitler can be treated as a war criminal and that no one can prevent
them from calling the individuals these names (in our country, of course, these
are most often Karadi and Mladi).
If we apply the abovementioned opinion to this situation, we can conclude that,
with regard to the people under charges before the International Criminal Tribunal for war crimes in former Yugoslavia or before some of the domestic courts
(as well as the courts in the region), in case someone calls them war criminals
(instead people charged of war crimes) this would not be theoretically legally
correct, but it could be reasonable in given circumstances, especially in cases
when these people are so called justice escapees, that is, if they are avoiding
to come before the court which can confirm their possible innocence or guilt.
Therefore, such cases could tolerate the exaggerated formulation of war criminal (instead of the suspect for war crimes), when referring to the people which
have not yet been convicted.
For more information see: Ruling of Sarajevo Cantonal Court No. P-39/03, 14 October
2004.
53
54
Ibid.
173
the Court established that the charges made against the first plaintiff because of
the criminal act of war crimes against civilians from Article 154, paragraph 1 KZ
FB-H, and that it consisted of seven points. It listed the cases for which the first
plaintiff was charged and which were related to war crimes committed against
civilians.53 The ruling of the Court stated that it is obvious that the decision on
whether the statement of claim was well-founded and whether its amount was
too large, regarding the first plaintiff cannot be made before the decision in the
abovementioned criminal procedure.54
Another important question is the way in which the media follow criminal procedures. Article 6, paragraph 2 of the European Convention of Human Rights55
guarantees the right to the presumption of innocence within the right to fair
trial. It primarily has to do with procedural law in relation to court authorities
which defines the importance of evidence in criminal procedures. However,
managing the legislature well requires the absence of even an indirect violation
of the presumption of innocence by expressing ones opinion or information in
the media related to the ongoing criminal procedures.
66
With regard to the question of media following criminal procedures, on 10 July

2003, the Council of Europe adopted Recommendation number 1356, which
points out the principles of this behavior, the most important of which are: public
should be informed by the media about the activities of the court and the police,
respecting the principle of presumption of innocence is the part of the right to
a fair process, so that the opinions and information related to ongoing criminal
procedures can be stated or disseminated in the media only if this does not violate
the right of the defendant to be considered innocent until the judgment on his
guilt is passed, and that the court and police should provide the media only with
verified information and the information based on reasonable assumptions.
67
The case of Du Roy and Malaurie v. France57 was related to the director and a journalist of a weekly magazine being sentenced after publishing an article referring
to criminal charges and the demand of them being involved in the procedure as
private persons. The European Court of Human Rights confirmed the principle
that journalists cannot cross the lines set with the goal of a well-managed legislation, such as the special right of the defendant to the presumption of innocence. In this case, however, the challenged interference included the full prohibition of publishing any type of information from the criminal procedure. This
is how, in this specific case, as the challenged article attacked French politicians
and their behavior, the Court emphasized that there are other mechanisms of
the protection of rights of people in question which do not make the absolute
prohibition of publishing necessary. Therefore, it was established that the accusation of the plaintiffs was not proportional to the intended goals and hence
68
55
Council of Europe, Recommendation Rec(2003)13 of the Committee of Member States

about reporting on criminal proceedings, adopted on 10 July 2003, http://www.ebu.ch/
CMSimages/en/leg_ref_coe_r2003_13_criminal_proceedings_100703_tcm6-5020.
pdf (accessed 18 July 2011).
56
Du Roy v. France (34000/96), 2000, http://cmiskp.echr.coe.int/tkp197/search.

asp?skin=hudoc-en (accessed 18 July 2011), and Court practice related to Article
10 of the European Convention on Human Right, available at: http://www.coe.int/t/
dghl/standardsetting/media/doc/translations/serbian/CaseLaw_sb.pdf (accessed 8
December 2011).
57
174
SATIRICAL EXPRESSIONS
When a court makes a decision about whether making or disseminating a statement was reasonable and therefore decide whether there is no liability for defamation, it takes into account all the circumstances of the case, and especially
the way, form and time of stating or disseminating the expression. Also, the
court should decide on the type of article or program in which the expression
was stated. This is how in practice there will be a difference when treating some
investigative article or comment or when dealing with a humorous or ironical
article. It often happens that the defendants are claiming that the article or the
program was satirical and that the statements cannot be seen as factual, and
that even a third person that is, the public, cannot take them seriously.
This is how in the case of the Sarajevo Cantonal Court case number P- 39/02
where the plaintiff H. B. sued W and . E, the defendants claimed that the texts
published in newspaper W called Wanted, are not based on true facts or any
other claims and that, instead, they are mocking one person, or they use satire
and humor in relation with the behavior of this person as a public, cultural or
political figure. However, the judgment of the Court was that the defendants
should pay 5,000KM to the plaintiff, as the compensation for damage of harming their reputation. The exposition of the judgment states:
this Court considers that there is a clear violation of privacy of the plaintiff found
also in the practice of European Court of Human Rights which establishes that it
is unacceptable for someone to be exposed to a disgrace because of a member of
their family and that the punishment would be justifiable only because of this allusion (judgment De Haes and Gijsels vs. Belgium, on 24 February 1997).... When
concluding this, the Court had in mind other factors, too, which had to be taken into
consideration in a case like this so that its opinion is that the procedure established
that the authors of the article did not mean well, nor did they take into account the
principle of the protection of privacy of the plaintiff.58
69
Deciding on the appeal to the abovementioned judgment, the Supreme Court

of FB-H stated the following:
Namely, factual expressions as the part of defamation had to be serious in order
58
Judgment of Sarajevo Cantonal Court No. P-39/02, 8 November 2004.

175
was opposing the Article 10 of the Convention. Hence, the European Court believes that absolute and general prohibition of media reporting about criminal
procedures is not necessary and that it would violate the right of the press to
inform the public about the questions which could have the general interest
even if they refer to criminal procedures.
to make a third person believe that certain facts exist. However, a statement given
as a joke has to have a clearly humorous tone which, in the opinion of this Court,
did not occur in this specific case in the statements that contained defamation. In
other words, that the plaintiff was a person who was doing drugs which could not
be said for the second part of the sentence related to the first one.
The Court also mentioned that humorous sentences still:
imply that the plaintiff is a drug addict and such statements, even though they represent an insinuation, that is, a hidden defamatory statement, indirectly and logically
contain defamation. This also refers to the statements with regard to other expressions,
thus the humorous tone of the article in the specific case represents claiming some facts
which, according to this Court, can harm the reputation of the plaintiff as a natural person who is a public figure with influence on the public while doing his job.... It is undisputable that the article in question entirely represents a type of literature, that is, satire or
humor, but it also contains the elements of defamation hence material law was correctly
applied when the defendants were proven to be liable for defamation and when they
were charged to pay the compensation for non-pecuniary damage.59
70
The Constitutional Court of Bosnia and Herzegovina, in case No. AP 1423/05,60

solving the appeal of Pres-sing d.o.o. Sarajevo and others, in the exposition of
decision stated that:
71
the Constitutional Court cannot accept the statements of the applicants that this
was a satire, as satire is a literary, that is, an art form which critically mocks an individual, group, state or authority. This genre allows exaggeration and provocation
but only if the facts are not incorrectly presented in the public.
In the specific case, the Constitutional Court considers that the expressions in
question do not contain the elements of satirical or humorous criticism at the expense of the plaintiff, but that they exclusively contain facts which were not verified
by the defendants by making reasonable efforts, because, as they said there was
not enough time and for which they could not provide any evidence in the procedure before the Court.61
72
The European Court of Human Rights mainly protects offensive, hyperbolic and
satirical expressions. However, no matter if the article or the show is satirical, in
the case some claims can be seen as factual statements and if they cause damage to the reputation of one person, the nature of the article or the show cannot
fully, per se, exclude the liability for this defamation.
59
Judgment of the Supreme Court of FBiH No. G 21/05, 12 April 2005.
Pres-sing d.o.o. Sarajevo et al. in Official Gazette of B-H No. 60/05, http://www.ccbh.
ba/bos/odluke/index.php?src=2 (accessed 8 December 2011).
60
61
Ibid.
176
Article 10, paragraph 3 of the Law on Protection against Defamation of FB-H62
Preliminary court orders to prohibit disseminating or further disseminating of an

expression of false fact may only be issued where publication has already occurred
and the allegedly injured person can make probable with virtual certainty that the
expression caused harm to his or her reputation and that the allegedly injured person will suffer irreparable harm as a result of further dissemination of the expression. Permanent court orders to prohibit the dissemination or further dissemination
of an expression of false fact may only be applied to the specific expression found to
be defamatory and to the specific person found to be responsible for the making or
dissemination of the expression.
The law of RS almost identically regulates the conditions of determining temporary measures in Article 11, paragraph 3.63
2
A few years ago, the media paid special attention to the case in which the Sarajevo Cantonal Court brought a temporary measure of prohibition of stating false
facts about a public figure. In this case, it was a politician and the measure was
directed at daily newspaper Dnevni avaz. At the same time, one weekly newspaper was prohibited from expressing false facts about the owner of Dnevni avaz.
This measure triggered off numerous debates and it was characterized as the
attack on the freedom of the press. The measures were seen as an absolute prohibition from writing about certain people although they clearly contained that
only false statements underwent these sanctions.
To our knowledge, after these temporary measures, there were no other measures of that kind before domestic courts. Entity laws regulate this issue in a
rather unusual way. They prescribe that the temporary court measure on the
prohibition of stating or disseminating false expressions can be imposed only
if the injured person can certainly prove that this statement caused irrepairable
damage. The question which arises is the one of the purpose of temporary measure, as the provisions of this law do not allow in any case expressing false facts
which could cause damage to other persons. Therefore, even if such measure
of the prohibition of publishing were brought, it would not make much sense.
The European Court does not find these limitations or even temporary prohibition of publishing the information per se incompatible with the right to freedom
of expression. In the opinion of the Court, these limitations are allowed only
in the rare cases where there is an urgent social need for such limitations, for
example, in cases of preventing riots or crimes or the protection of the security
of one state. Because of the potential danger for freedom of expression, these
62
63

177
TEMPORARY MEASURES
limitations have to be treated extremely carefully.

The European Court of Human Rights treated the measure of the prohibition of publishing in the case of Sunday Times vs. the United Kingdom64 in 1991. The case was
about the court prohibition based on the state law at the time which referred to
disrespecting the court, publishing the announced article in newspapers which had
to do with medicine thalidomid, used as a sedative during 1961 by some pregnant
women and which turned out to be harmful for their babies. At that time, there was
an ongoing procedure for compensation for damage against the producer of the
medicine and the Sunday Times, just as all other media, reported about these procedures. In one article, another article was announced at the end and this second article was supposed to explain how the tragedy occurred and explore the behavior of
pharmaceutical company. The state prosecutor asked for, and the court confirmed,
the prohibition of publishing the announced article. The prohibition was issued on
the basis of the Law on disrespecting the court in order to prevent allegedly illegal influence on court procedures. The prohibition was valid until the agreement
of the parties. The European Court established that the reasons for preventing the
applicants are insufficient according to Article 10, paragraph 2. This prohibition was
disproportional to the set legitimate goal and it was unnecessary in a democratic
society. The judgment of the European Court stated the following:
3
Previous limitations have inherent jeopardizes which require the most thorough examination by the Court. This is especially related to the press as news has an expiration date and if it is published with delay, even with a small delay, it can be deprived
of every value and interest to a significant extent.65
4
On the other hand, regarding the case of Markt intern, the Court supported the
prohibition preventing one magazine from publishing the information about
the company on the market. Even though the case was concerned with an interference into commercial advertising, the opinion of the Court was that:
even when publishing texts which are true and which describe actual events, under
certain circumstances there can be prohibited: obligation to respect the privacy of
the others or the obligation of respecting the confidentiality of certain commercial
information, as they are precisely such examples.
URGENCY OF ACTION IN PROCEEEDINGS RELATED TO DEFAMATION

Article 14 of the Law on Protection against Defamation of FB-H66 stipulates that
procedures related to charges of the compensation for damage due to defama5
64
Supra note 47.
65
Ibid.
66
Supra note 1.
178
There is the question whether cases of this kind are supposed to have the priority when making decisions because many people emphasize that, in the situation when the courts are flooded with various cases, many of which have the
existential importance for citizens, the protection against defamation should
not be the priority. However, there are some opinions that having courts decide
in these procedures after a long time makes no sense, as certain defamatory
information can be forgotten and, if the judgment of the court comes late, then
it is not efficient and it does not diminish the consequences of the violation of
the persons reputation. It would certainly be good if these cases were solved
quickly, just as all the others, but in the situation where domestic legislation is
running late with solving disputes, this is very hard to expect.
DIMINISHING DAMAGE
Article 8, Law on Protection against Defamation of FB-H:
Injured person shall undertake all necessary measures to mitigate any harm caused
by the expression of false fact and in particular requesting a correction of that expression from the person who allegedly caused the harm.67
6
Article 8 of the Law on Protection against Defamation of RS also states that the
injured person should try to diminish the damage caused by false expressions,
but it does not prescribe that the injured person is obligated but that he/she
should take all necessary measures.68
7
Such obligation of the injured person is one of the principles generally applied
in other types of damage compensation. The Law especially emphasizes that
there should be a request for retraction [bolding by author], as a measure taken by the injured person in order to diminish the damage (although it is not
completely clear which other efficient measures the injured persons have at their
disposal).
So far, the legislative application of the Law on Protection against Defamation
came across the disputable application of the abovementioned law, according
67
Supra note 1.
68
Ibid.
179
tion that occurred in mass media are considered urgent. Also, courts ought to
act according to the charges for compensation of damage caused by defamation in mass media within thirty days since the charges were submitted to the
court in charge. The intention was to make court protection faster, having in
mind the importance of a harmed object, that is, honor and reputation of one
person. There is no such provision in the Law of Republika Srpska.
to legal theory. It is unclear whether the submission of the request for retraction
is a presumption for making charges due to damage compensation (e.g. as it is
in Croatia) or whether it is only a possibility at plaintiffs disposal.
In court practice, in some cases, courts accepted the requests for damage compensation even if there was not a request for retraction, but, in such judgments,
the amount of compensation was smaller than it could have been in case there
had been such request. Of course, there is also the opinion that charges cannot
be made if such request is made, hence these charges are to be repudiated. This
dilemma is the result of a legal provision that is not precise enough, especially
in the Law of the Federation, due to the term obligated that can be seen as an
mandatory act on which the charges depend.
PUBLISHING THE JUDGMENT

Also, there is the question of application and provision of Article 199 of the Law
on Obligatory Relations.69 This Law prescribes that, in case the right of a personality is violated, the court can order the person who caused damage to pay for the
publishing of the judgment or correction. This person may also be obligated to
take back the statement which caused damage or to do something else which
could be equal to the purpose of compensation.
8
This is how the judgment No. 131/03 from November 22nd 2004 of the Sarajevo
Cantonal Court obligated the defendant to publish the judgment and the exposition. The judgment stated the following:
The Court decided not to publish the entire judgment but just the introduction and
the statement. Publishing the introduction and the statement will, according to this
Court, achieve the purpose of compensation to the plaintiff whereas publishing the
entire judgment, having in mind its volume does not fulfill the purpose and it is not
necessary.70
9
This exposition shows the tendency of the Court to achieve the satisfaction of
the person injured due to non-pecuniary damage by negating the disputable
expression and not primarily by adjudging a bigger fine.
It is important to mention that lately there has been an increase of the number of statements of claim where plaintiffs require only a symbolical amount
(e.g.1KM) and the publishing of the judgment and a retraction in liable media,
showing that people truly want to protect their honor and reputation, and not
to get a big amount of money.
69
Supra note 14.
70
Judgment of Sarajevo Cantonal Court, No. 131/03, 22 November 2004.
180
The opinion of the Court is that the defendants are ordered to publish the introduction and the statement of the judgment in mass media, which in this case represent
a third person, that is, they are not included in the procedure. Namely, Article 199 of
the Law on Obligatory Relations states that in case there is a violation of the right
of a person, courts can order publishing the judgment at the expense of defendant
which can achieve the purpose of compensation.71
1
PUBLISHING A CORRECTION
Court practice claims that publishing a correction has to be taken into account
when determining the amount of non-pecuniary damage, because in case a
correction is published, the amount of damage will be smaller because it
was in a way diminished [bolding by author]. If there is no correction, then the
amount will be bigger as the defendant is clearly not acting with bona fide and
that he is not willing to diminish the damage. Also, in case there is no request for
correction, this should be taken into account when determining the amount of
damage and make this amount smaller because the plaintiff did not do everything in order to lessen the damage, as obligated by the law.
One of the first judgments made based on the Law on Protection against
Defamation of FB-H72 was case No. P-127/03. When deciding on the amount of
damage, the Sarajevo Cantonal Court took into account that the request for retraction was not published in the media that published the disputable expression. The exposition stated that during the procedure, the Court had the access to
the written request of the plaintiff made on 16 June 2003 and the Court established
that the plaintiff was addressing the second defendant and that he asked him to
print a retraction and an apology, and he also asked his response to be included in
newspaper Express in order to inform the public correctly.... After there was a confirmation from the post office in Sarajevo that the statement of claim was received by
the defendants, it was clear that this response had not been published.
2
The judgment of the Supreme Court of Croatia No.Rev-1261/97 is a good example of courts taking into account the fact that the defendant published a re71
Judgment of Sarajevo Cantonal Court, No. P: 169/03, April 2004.
72
Supra note 1.
181
Also, it is possible to make defendants obligated to publish the judgment in another media at their own expense, and the court practice has already seen several such cases. In a judgment of the Sarajevo Cantonal Court, the first and the second defendant (Sarajevska pivara and Hilmo Selimovi) were obligated to pay
for and ensure that the introduction and statement of this judgment are published after it came into effect in the next edition of newspapers: Osloboenje,
Dani, San and Dnevni avaz. The exposition of the judgment states:
traction of false information when the Court was deciding on the amount of
damage. The exposition stated:
The courts at lower levels determined the duration and the amount of emotional
distress suffered by the plaintiff as his honor has been harmed and the fact that the
defendant did not prove the circumstances making him free from liability for damage, and they also took into account the circulation of Novi List which published the
disputable article.
When deciding on the amount of damage, courts at lower levels took into account
the fact that the defendant published a retraction but that this still does not make
damage disappear.
Unfortunately, in our country it often happens that the media that received
the request for retraction would publish it in a way that only causes more
damage to the injured person, that is, they use this request for new defamation and offense. Of course, this is unacceptable and, in such cases,
courts should sanction this behavior by making the compensation for damage bigger. As an example, in the case No.P79-04 of the Sarajevo Cantonal
Court damages could not be diminished because the apology of defendants was insincere and accompanied by ironic comments in the request
for retraction:
Were sorry, Mile Stoji! If you need any more details, we will continue: Mile, were
sorry we published a caricature of you as a Dracula, were sorry we tried to present
you as a natzy, a Bosniak-hater, a favorite of Franjo Tuman, we apologize for insulting you and your physical appearance and health condition. There, this is what the
lawyer asked us to do. If Mile Stoji feels better after we apologized, we will be happy
to see that we did a good deed.
LIABILITY FOR INSULT

According to one of the definition, insult is a statement or behavior expressing
a snub or disrespect of another person. A more severe form of an insult would be
a so-called public insult, that is, an insult published in the media or available to
a greater number of third persons. Liability for insult was in the past also stipulated by criminal laws in B-H, and the judgment in criminal procedures made
courts obligated to adjudge compensation in the forms stipulated by the Law
on Obligatory Relations, with a note that criminal procedures for an insult were
started by private charges.
Both entity Laws on Protection against Defamation stipulate that this law is lex
specialis in relation to all other laws. For everything not regulated by these laws,
what will be applied are the provisions of the Law on Obligatory Relations, Law
182
In court practice, what appeared was the question of whether there is a basis for a demand for the compensation for damage according to the Law on
Protection against Defamation when the procedure establishes that there is
no defamation in that specific case, but if it establishes that there is a statement that represents an insult causing non-pecuniary damage. In some cases, courts would refuse the statement of claim if they established that there
was only an insult. However, according to the rules of legal proceedings, the
court is not bound by the legal qualification of a statement of claim so that
there are no formal legal obstacles to pass the sentence of compensation for
damage if insult is committed in line with relevant provisions of the Law on
Obligatory Relations.
This was also the opinion of the Constitutional Court of B-H in case No. AP
1064/05, where the court repudiated the non-based appeal of one publisher,
the editor in chief of one weekly newspaper, who published a degrading and insulting text about one public figure. The appeal challenged the charges of regular courts that obligated the applicants to paying compensation for defamation.
The Constitutional Court concluded that:
it considers that even if the existence of a legitimate goal can be accepted, when
it comes to the essence of the disputable text, as it was about a matter important for the public, and considering the nature of the disputable expression, the
plaintiff was not obligated to demand its retraction. Also, in the proceedings,
applicants did not show any willingness to apologize to the plaintiff, hence they
have to be considered responsible for an insulting expression about the plaintiff.
Namely, in this specific case, the general interest which allows questions to be
raised regarding the tragedy of the worker of itoprerada from Biha, cannot
use snubbing the plaintiff as a defense, nor can it use disrespect and humiliation of her dignity which attacks and harms her honor and reputation which
caused her emotional distress that she is not obligated to tolerate no matter
which position she occupied in the Municipality Court. According to the medical documents enclosed, regular courts established that after the text in which
applicants insulted her was published, the plaintiff suffered emotional distress
because her reputation and honor were violated, and that she was treated for
psychological problems for a period of time....However, even though the Law on
Protection against Defamation does not stipulate the possibility of a legal liability for an insult, as it supports the right to expression (...) which can insult, shock
or disturb (...) this does not mean that it supports unprofessional conduct. The
183
on Executive Procedure and Law on Legal Proceedings which are in force in Republika Srpska and the Federation of B-H. The Law on Obligatory Relations does
not make any difference between insult and defamation. Instead, Article 200
stipulates compensation for non-pecuniary damage in cases of harming ones
reputation and honor.
possibility of legal liability for insult still exists. Namely, the Law on Obligatory
Relations stipulates that for emotional distress suffered because of the violation
of reputation and honor, the court can pass the sentence of a fair compensation
for non-pecuniary damage, if it considers that the circumstances of the case justify this...Having in mind the abovementioned, with challenged charges and according to the principle of proportionality, the balance was established between
the freedom of media and the right of protection of honor and reputation of
the plaintiff. Also, considering all the circumstances of this case, by challenging
judgments, the courts decided that there is an urgent social need requiring a
concrete boundaries in the realization of freedom of expression. Constitutional
Court does not consider that it can be concluded that regular courts crossed the
allowed degree of discretion of the court. On the basis of the abovementioned,
the Constitutional Court concludes that there is no violation of the right to freedom of expression in Article 2/3.h) of the Constitution of Bosnia and Herzegovina and Article 10 of the Convention.73
3
INSULT WITH A NATIONAL LABEL

With regard to the treatment of insult in the light of Article 10 of the Convention, the
judgment U-39/01 of the Constitutional Court of B-H is also interesting, although
this specific case does not contain a statement published in the media. Namely, in
this case, Mr. M.H. from Tuzla made an appeal to the Constitutional Court of Bosnia
and Herzegovina against the judgment of the Supreme Court of the Federation of
Bosnia and Herzegovina No. Rev.45/01. The applicant was a worker in a Thermoelectric power plant in Tuzla. On October 3rd 1995, the Disciplinary Committee of the
enterprise made a decision in which, as a disciplinary measure, his working position
was taken away from him because of a serious violation of working obligations.
Allegedly, he insulted a colleague of his by writing the following in the transfer book
Ustasha!! In the future, dont fill the bottles with ink on boilers 3 and 4, and clean the
tables when youre done and take this as a warning!
The Disciplinary Committee assessed that such conduct disturbed the relations among people and among nations in the enterprise and it made a decision to dismiss M.H. Court decisions that followed, confirmed the decision of
Disciplinary Committee. In the decision that repudiated the appeal, Constitutional Court states:
Applicant states that the courts did not take into account the specific circumstances in Bosnia and Herzegovina and in the Enterprise at the time of the alleged insult
Decision on merits, applicant: Press-sing d.o.o. Sarajevo and Senad Avdi (AP
1064/05), 14 March 2006, http://www.ccbh.ba/bos/odluke/index.php?src=2# (accessed 8 May 2012).
73
184
The condition for an insult not representing an arbitrary personal attack not
to be punished is a standard practice of the European Court of Human Rights
which considers that there cannot be an arbitrary personal attack when the
author of the statement does not give an objective explanation, that is, when
this was a response which was justifiably provoked by the former expression
or conduct of the plaintiff. This is why, in the famous decision on Oberschlick
No.2 against Austria in 1997, the Court emphasized: The applicants words
(idiot) could be considered polemical, but did not on that account constitute a
gratuitous personal attack as he had provided an objectively understandable
explanation, derived from the speech of the politician concerned this word did
not seem disproportional to indignation knowingly aroused by the politician
concerned.75
5
Therefore, when an expression is an insult and not defamation, and when this
defamation causes damage to one person, that is, if his/her reputation is harmed
thus causing emotional distress (it is difficult to imagine a situation where the
insulted person suffered pecuniary damage), the compensation in B-H is realAppeal, applicant: M.H. (Constitutional Court of B-H: U-39/01), 6 April 2002, http://
www.ccbh.ba/bos/odluke/povuci_pdf.php?pid=22803 (accessed 8 May 2012).
74
Oberschlick v. Austria (no. 2) (47/1996/666/852), 1 July 1997, http://www.hrcr.org/

safrica/expression/oberschlick_austria.html (accessed 30 May 2011).
75
185
or threat, nor did they take into account its specific nature. The applicant does not
negate writing the word or phrase in the transfer book as it was mentioned, but
he claims that these expressions were not serious as such expressions at that time
were even officially used or they could be heard in the media. In the specific case,
the application of Article 10 of the Convention is questionable for two reasons.
Namely, on one hand, it has to be explained whether this fundamental freedom
is applicable to the relations between the employer and the applicant or not. On
the other hand, there are doubts about whether the violation of freedom of expression in the sense of Article 10 of the Convention even occurred...., ....there are
doubts whether the applicants insults are covered by Article 10 of the Convention
as it is stated in the quote from the subject of Handyside against Great Britain.
There was not an intention of the applicant to express his opinion when writing
those words in the transfer book and hence he did not intend to contribute to a
certain dispute or to make an influence on someones opinion of their colleague.
Also, he did not have an intention of offering the information about his colleague.
Word Ustasha was a clear insult which could be replaced with any other insulting
expression without any political implication. These words were only for his colleague. The opinion of the Court is that in such circumstances it was not necessary
for the Supreme Court to take into account any implications of Article 10 of the
Convention in this specific case. Therefore, the judgment of the Supreme Court did
not violate the applicants freedom of expression.74
ized in legal proceedings before the court in charge. But this does not happen
on the basis of the Law on Protection against Defamation, but on the basis of the
provisions of the Law on Obligatory Relations.
186
Mehmed Halilovi and Mladen Srdi
In conclusion, the Law on Protection against Defamation, and its application in

B-H, has strengthened rights to both freedom of expression and freedom of
media. Court practices on defamation are particularly strong in respect to the
following:
1. Court practice protects the principle of freedom of expression;
2. Generally, courts follow the practice of the European Court;
3. Compensations for non-pecuniary damage typically involve relatively small
amounts of money;
4. When passing judgments, courts do not quote only European Convention
and decisions of the Constitutional Court of B-H, but also the Press Code of
B-H, which serves as the basis for assessing professional conduct of journalistrs and editors.
On the other hand, persisting shortcomings in the application and interpretation of the Law on Protection against Defamation include:
1. A slow process in solving civil claims regarding defamation, despite legal
stipulations that such cases be solved urgently;
2. Inconsistent use of experts by different courts in determining proof of emotional distress.
3. Inconsistent interpretation of provisions by courts, especially in cases that
must determine passive legitimation (i.e. who authored the expressed information).
RECOMMENDATIONS TO JOURNALISTS AND EDITORS

It is a general rule that disseminating someone elses statements does not make
a person doing so free from liability (of course, when there is an expression with
elements of defamation or insult). In order to lessen the possibility of such liability, when disseminating someone elses statement, the following rules resulting
from the practice of the European Court and domestic courts should be obeyed:

Disseminated information should be correctly quoted;
Information must be disseminated with an appropriate amount of carefulness

187
BASIC CONCLUSIONS ABOUT THE TREATMENT OF DEFAMATION BEFORE COURTS IN B-H
BAS IC CO NCLU SION S ABOU T TH E TR EATM ENT O F

D E FAMAT IO N BEFORE COU R TS IN B - H
meaning that it should be verified and that non-critical dissemination should

be avoided;

If possible, the party to which disputable expression refers should have a

chance to comment and react on it;
It should be clearly stated that the information was taken over from another
source and not from the media publishing it;
Attention should be paid to the type of the source from which the media
disseminate expressions (it is natural that there should be less doubt in the
veracity of information published by, e.g. New York Times, than in the veracity of something published by so called yellow pages);
When disseminating, it is not always necessary to make a formal distance

from the content of quotes which can offense or provoke the others or
which can harm their reputation, but if there is a doubt in the veracity of
these citations then a certain kind of caution and distance when disseminating citations can be helpful for journalists or media if it possibly comes
to establishing the liability for defamation.
In order to avoid charges of defamation, the media should apply a test easily
used by every journalist and editor:

Have I done everything I could in order to hear the other side of the story,
too?
Are there elements of insult or defamation in my article/report?
If there are, can I defend every sentence which violates someones reputation?
It the answer to questions one and three is yes, then the story should be published.
If the answer is no- do not give up. Add missing arguments and elements to the
story.
188
Chapter 6
MEDIA AND JUDICIAL SYSTEM OF B-H
Sevima Sali-Terzi
CASES RELATED TO THE LAW ON PROTECTION AGAINST DEFAMATION

There is no single branch of Government in Bosnia and Herzegovina. Instead,
in line with constitutional and legal order, judicature is regulated at three levels of rule: the Federation of Bosnia and Herzegovina (FB-H), Republika Srpska
(RS) and Brko District of Bosnia and Herzegovina (BD). In line with this, each
administrative-territorial unit has the authority to regulate the organization and
the authorizations of court (actual and local), and to arrange procedural rules in
civil, criminal, and administrative disputes.
Graph 1: Schematic overview of organization and
jurisdiction of courts in FB-H B-H
SUPREME COURT OF FBiH
The authorization of second instance in relation to
the desisions of cantonal courts when deciding on
thr first instance. Decides on emergency legal remedies against court decisions that enter into force.
10 cantonal courts
Authorization of first instance in administrative
affairs; authorization of first instance in criminal
affairs prescribed by law. The authorization of second instance in relation to decisions of municipal
courts (decidingon complaints)
28 municipality courts
Authorization of first instance in civic disputes;
authorization of first instance in criminal affairs
when it is prescribed by law: extrajudicial procedures; executive procedures; offence procedures;
land register administration; other
191
CASES INVOLVING MEDIA IN B-H: MECHANISMS OF PROTECTION AND PROCEDURE
CASES INVOLVING MEDIA IN B-H: MECHANISMS OF PROTECTION

AND PROCEDURE
Graph 2: Schematic overview of organization and jurisdiction of courts in RS

High Commercial
Court
Jurisdiction of second
instance in relation
to the decisions
of first instance of
commercial courts
Commercial District
Court
Jurisdiction of
first instance
in commercial
disputes
SUPREME COURT OF RS
Jurisdiction of second instance in relation to
decisions of district courts when deciding on first
instance. Decides on exceptional legal remedies
for final court decisions.
5 DISTRICT COURTS
Jurisdiction of first instance in administrative disputes; jurisdiction of first instance in
criminal affairs, prescribed by law. Jurisdiction
of second instance in relation to decisions of
municipal courts (deciding on complaints).
19 BASIC COURTS
Jurisdiction of first instance in civil disputes;
jurisdiction of first instance in criminal affairs
when it is prescribed by law; uncontested
proceedings; offence proceedings; executive
proceeding; land register administration; other
Graph 3: Schematic overview of organization and

jurisdiction of courts in BDB-H
Court of Appeal of BDB-H
Jurisdiction of second instance in relation to
decisions of the Basic Court of B-H. Decides on
exceptional legal remedies against final court
decisions
Basic Court of BDB-H

Jurisdiction of first instance in all disputes
including offence proceedings; executive
proceeding; other
192
In line with constitutional and legal jurisdiction of entities and BD, three laws
on protection against defamation have been passed and applied.1 This is how
defamation became decriminalized in B-H, as these laws arrange civil liability for damage caused to the reputation of private or legal person. Therefore,
court protection based on these laws is realized in legal proceedings before
courts that have jurisdiction. According to the laws on protection against defamation in RS and BD B-H, jurisdiction over these cases in first instance belongs
to basic courts, whereas district courts in RS and the Court of Appeal, as courts
of second instance, decide on complaints. In FB-H, courts of first instance with
jurisdiction were cantonal courts, whereas the Supreme Court of FB-H had the
jurisdiction of second instance over appeals. However, as the Law on Protection against Defamation in FB-H was amended in 2005, the jurisdiction of first
instance regarding deciding on lawsuits was transferred to municipal courts,
whereas cantonal courts became courts of second instance, deciding on appeals. This means that today, in B-H, regardless of the fact that the jurisdiction
related to regulating laws on protection against defamation and organizing
court system is divided into three administrative-territorial units within B-H,
procedural protection still works in the same way: in the first instance, defamation claims come before municipal or basic courts, and appeals belong to
courts of second instance: cantonal courts in FB-H, district court in RS and the
Court of Appeal in BD.
DEADLINES FOR ASSERTING DEFAMATION CLAIM

Laws on protection against defamation prescribe deadlines for filing lawsuits
in a unique way. According to all three laws, lawsuit can be filed within three
months starting from the day when injured person finds out or should find out
about defamation and the person who caused damage; this deadline must be
respected and cannot be extended after one year from the day when this expression was stated to a third person expires. Therefore, subjective deadline of
asking for compensation is three months and objective deadline is one year. If
these deadlines are not respected, the right for court protection is lost, meaning that deadlines are preclusive and that the right to protection is lost after
they expire. The three laws also state that there is an urgency of procedures for
No. 19/03 and 73/05, entered into force in 2002; Law on Protection against Defamation
of RS (Banja Luka, July 2001), Official Gazette of RS No. 37/01, entered into force on 1
August 2001; Law on Protection against Defamation of Brcko District of Bosnia and Herzegovina (Brcko, 2003), Official Gazette of Brcko District of B-H, No. 14/03, entered into
force in 2003.
1
193
FILING LAWSUITS AND APPEALS AGAINST DECISIONS OF FIRST INSTANCE
compensation based on lawsuits for defamation expressed in mass media, thus

courts must act within 30 days starting from the day of receiving the lawsuit. In
case courts do not respect these deadlines, the parties do not have at their disposal a legal remedy that could influence these disputes to actually be solved as
soon as possible. In this case, not even an appeal to the Constitutional Court due
to violation of right to trial can help, because the fact that courts sometimes do
not respect legally prescribed deadlines for urgent actions in these disputes will
not suffice for establishing the violation of the right to trial within a reasonable
period of time in the sense of Article 6, paragraph 1 of the Convention.
USING REVISION AS AN EXCEPTIONAL LEGAL REMEDY

Beside the actual jurisdiction of courts, deadlines for asking protection, and
some general principles which courts must respect when deciding on compensation (so as not to adjudge too high compensations and put the right to freedom of expression in jeopardy), laws on protection against defamation transfer
all issues they do not regulate to adequate laws on obligatory relations, laws on
litigatory procedures and laws on executive procedures. Considering the application of relevant Law on Legal Proceedings, the protection against defamation
can under certain circumstances mean the possibility of using exceptional legal
remedy, which is included under the jurisdiction of the Supreme Court of RS or
FB-H, that is, of the Court of Appeal of BD at the third level.
Generally, revision against a judgment is exceptional, independent, devolving, non-suspensive, limited and a two-fold legal remedy that can be
used against the final judgment of the court of second instance based on
the appeal related to the judgment of the court of first instance. This occurs exclusively due to substantial violations in legal proceedings or due to
the incorrect application of material rights, but not because of incorrect or
incomplete facts. This legal remedy provides parties with a right to contest
a suit but it does not mean that all final judgments can be attacked for any
irregularity. Otherwise the institute of coming into effect would lose its legal
value, and the preservation of the principle of economical proceeding and
legal security would be brought into question. Therefore, procedural laws
limit the conditions, which allow revision by prescribing strict, preclusive
deadlines, census and reasons for revision. However, the goal of revision primarily involves the court of revisions influence in forming unified stances of
courts by taking the same stance regarding the same legal issue. Therefore,
although census remained a general rule for allowing revision, new laws in
B-H prescribe that revision is allowed also in cases when, according to the assessment of the court of revision, deciding on revision would be important
194
However, it is only possible to use such remedy when all conditions stipulated
by adequate Law on Legal Proceedings are fulfilled. Namely, the revision against
the decision of second instance is allowed only in cases when the value of contested part of final decision is not higher than 10,000 KM in FB-H and RS, or
30,000 in BD.3 This means that the value of the dispute claimed by plaintiffs in
their lawsuits is not important when discussing whether revision is allowed or
not (in such disputes it is mainly the amount of compensation); instead, this depends on the part of final decision contested by the revision.4 However, laws
on legal procedures in FB-H and RS state that the Supreme Court can, in exceptional cases, allow revision in all cases, if it determines that deciding on revision
would be important for the application of rights in other cases.
2
The importance of such provision lies in the fact that courts can assess the
subject of the dispute which does not cross prescribed census and which can
influence court practice hence it can be significant for adopting certain legal
understanding important for a unique application of law. This provision is created in a way that leaves wide discretion for the court of revision in relation
to the question of whether it is a legal issue that could be considered by the
court conducting revision, regardless of the prescribed census. Still, this provision leaves a possibility for parties to use such remedy even when there is no
prescribed census serving as a condition for claiming revision. In this case, the
revision should include reasons why one party believes that there are reasons
for considering revision on this basis, which does not obligate the court to
See more: Modul 4: Field of Civil Law exceptional legal remedies, VSTV, CEST FB-H
and CEST RS, January 2006, available at: http://www.fbih.cest.gov.ba/index.
php?option=com_docman&ltemid=30&task=view_category&catid=26 (accessed 21
January 2012).
2
Article 237. par. 2. Of the Law on Legal Proceedings of FB-H (Sarajevo, 2003), Official Gazette of FB-H 53/03, entered into force 28 October 2003, http://www.advokathrvacic.
com.ba/dokumentacija/zpp.pdf (accessed 9 March 2012); see also:
Official Gazette of FB-H No.73/05 and 19/06.
And Law on Legal Proceedings of RS (Banjaluka, 2003), Official Gazette of RS 58/03, entered into force 1 August 2003; and Official Gazette of RS 85/03, 74/05 and 63/07, http://
www.advokatprnjavorac.com/zakoni/Zakon_o_parnicnom_postupku_
RS_Integral.pdf (accessed 9 March 2012). And Article 310. par. 2 and 3 of the Law on Legal Proceedings of BDB-H: Integral text, Official Gazette of BDB-H j 5/00, entered into force
in 2000, http://www.hjpc.ba/dc/pdf/zpp-%20precisceni%20tekst%2008%2012%20
2005.pdf (accessed 9 March 2012); see also Official Gazette of BDB-H 1/01 and 6/02.
3
For example, if the plaintif asked for 10,100KM as compensation before courts in FB-H
or RS, and the judgment stated that there would be only 3000KM of compensation,
then the value of disputable part would be 7100 and revision would not be allowed.
On the other hand, if the statement of claim is repudiated completely, then revision is
allowed.
4
195
for the application of rights in other cases.2
accept these reasons nor to consider them to detail in case it decides to reject
the revision if the value of contested part of the judgment is not higher than
the prescribed amount.
SUBMITTING APPEAL TO THE CONSTITUTIONAL COURT OF BOSNIA AND

HERZEGOVINA
If there is a final decision for which there are no other legal remedies, appeal
can be submitted to the Constitutional Court of B-H based on the violation of
human rights granted by the Constitution of B-H and the European Convention. In
most cases, the final decision on defamation claims is the decision of the court
of second instance (cantonal, district or the Court of Appeal of BD). In case a
revision against the decision of second instance is possible, if it fulfills the conditions stipulated by the Law on Legal Proceedings regarding prescribed census
(so, if the value of contested part of final judgment is more than 10,000KM) then
it is first necessary to use this legal remedy since the Constitutional Court of
B-H considers revision an efficient legal remedy; otherwise, the appeal will be
rejected because not all possible legal remedies have been used.5 Therefore, in
such case, the appeal can be submitted only against the decision of revision
court, as this would be the final decision. Also, in order to consider the appeal
with merits, the appeal must fulfill other formal conditions stipulated by Article
16 of the Rule of the Constitutional Court of B-H.6
4
APPEAL TO THE EUROPEAN COURT OF HUMAN RIGHTS

Against final decisions for which there are no legal remedies in domestic legal
system, there can be an appeal before the European Court of Human Rights (the
European Court) and it has to be made within six months starting from the day
when the final decision was received. Normally, the European Court considers
the Constitutional Court of B-H an efficient legal remedy for the protection of
human rights at domestic level. This makes asking for protection before the European Court only possible when the attempt of getting protection before the
Constitutional Court of B-H is exhausted.
See: Decision of the Constitutional Court of B-H on permission (AP 3932/11), 9 November
2011, http://www.ustavnisud.ba/bos/odluke/povuci_html.php?pr=&pid=387270
5
Rules of the Constitutional Court of B-H, Official Gazette of B-H 60/05, 64/08 and 51/09,
available at: http://www.ustavnisud.ba/bos/p_stream.php?kat=83&pkat=84 (accessed 9 March 2012).
6
196
Lawsuit
Deadline: 90 days
Federation of B-H
Municipal Court with
local jurisdiction
Republika Srpska
Basic Court with local
jurisdiction
Brko District B-H

Basic Court BDB-H
Complaints
to Cantonal Court with
jurisdiction
Complaints
to Disctrict Court with
jurisdiction
Complaint
to Court of Appeal of
BDB-H
Revision to the Supreme Court

of FB-H, RS or to the Court of
Appeal of BDB-H (if permitted)
Appeal to the Constitutional

Court of B-H against final
decision
Appeal to the European Court

of Human Rights
MEDIA DISPUTES RELATED TO THE APPLICATION OF THE COMMUNICATION LAW

The Communication Law regulates the field of communications in B-H, field that
include telecommunications, radio, broadcasting (cable television, too), and other
related services and tools.7 What is important for the work of media is that this
law contains the provisions related to issuing licenses for broadcasters and operators of telecommunications and monitoring respecting the conditions of licenses
through the Communications Regulatory Agency (the CRA).8 Considering the
6
entered into force on 21 October 2003; Law on Amendments of Communication Law
(Sarajevo, 29 August 2006), Official Gazette of B-H 75/06, entered into force in 2006; Law
on Amendments of Communication Law (Sarajevo, 9 April 2010), Official Gazette of B-H
32/10, entered into force 22 April 2010, all laws available at: http://www.rak.ba/bih/
index.php?uid=1269443180 (accessed 23 March 2012).
7
Ibid., Article 36, paragraph 1, point b.

197
Graph 4: Using legal remedies for court protection
fact that the CRA issues licenses to broadcasters and brings executive measures
against broadcasters, including taking away the license, it is important to emphasize that Article 10 of the Convention allows the state to regulate electronic
media because paragraph 1 prescribes that this Article does not prevent states
to require working permits from radio, television and movie companies. Related
to this, the European Court established that there was a violation of rights found
in Article 10 of the Convention in cases that dealt with governments refusing to
provide these permits to some broadcasters. The Court reiterated that state monopoly in RTV broadcasting puts great limitations on pluralism and, thus, can be
justified only if there is an urgent social need for such limitation.9 Also, according
to the practice of the European Court, the reception of television programs can
also be found in the scope of right to be informed in Article 10 of the Convention.10
8
The Communication Law prescribes that the CRA can bring executive measures
proportionally to offenses and these measures include fines, warrants for cancelling broadcasting for a certain period of time, as well as revocation of the
license. The decision of first instance in these cases is made by General Director
of the CRA and the appeals against such decision are submitted to the Council of
the Agency. The Council works based on the Law on Administrative Procedure of
B-H, but the appeal against the decision of General Director does not postpone
the realization of decision. Decisions of the Council of the Agency are final and
binding in administrative procedures, but administrative dispute can be conducted against them and can start before the Court of Bosnia and Herzegovina
(the Court of B-H).11
10
Since such decision can trigger off the question of the protection of rights in
Article 10 of the Convention, an appeal before the Constitutional Court can be
made against the decision of the Court of B-H. After this, in case the appeal is not
successful, it is possible to ask for protection before the European Court.
Informationsverein Lentia et al. v. Austria (13914/88,15041/89 and15717/89), 24 November 2003, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 23
March 2012);
Radio ABC v. Austria (19736/92), 20 October 1997, http://cmiskp.echr.coe.int/tkp197/
9
See: Autronic AG v. Switzerland (12726/87), 22 May 1990, http://cmiskp.echr.coe.int/

tkp197/search.asp?skin=hudoc-en (accessed 23 March 2012);
or Groppera Radio AG v. Switzerland (10890/84), 28 March 1990, http://cmiskp.echr.coe.
10
11
198
Graph 5: Protection of rights according to the Communication Law
DirectorGeneral of the CRA

Decision of first instance
Council of the CRA

Complaint against the
decision of first instance
Court of Bosnia and Herzegovina

Lawsuit in administrative
proceedings
Constitutional Court of B-H

Appeal against decisions of
the Court of B-H
European Court of Human

Rights
Appeal
199
BU R D EN O F PROOF IN L ITIG ATORY PR O C EEDINGS

Mladen Srdi
In court proceedings related to possibly defamatory or offensive expressions,

there is the question of whom the burden of proving certain facts belongs to.
According to provisions of valid Laws on Legal Proceedings1 in both entities,
each party is obligated to prove the facts on which they base their request and
the court will, based on the discretion of the court of proofs, determine the facts
on which it will make its decision. Based on this, many people conclude that the
burden of proving mainly belongs to the plaintiff, as this person makes a statement of claim in one proceeding. We believe that such opinion is wrong and that
the burden of proving in proceedings must be more equally allocated among
parties, but that there can be clear rules about who exactly should prove facts in
proceedings and what should those facts be.
11
In our court practice, when deciding on the existence of defamation, the person
who stated or disseminated such information has the burden of proving that
some expression is defamatory. This is logical because, when it is claimed that
someone is, for example, corrupted, and if this person makes charges based on
defamation, it is natural that it is the person stating this should prove that this
is true. In practice, it would be almost impossible to prove a negative fact. Of
course, when it comes to offending or expressing a value judgment, it is not
even possible to prove that there this is true (this is why it is necessary to make a
distinction between facts and judgments in the first place).
However, in some decisions, the European Court of Human Rights criticized allocating the burden of proving to defendants on several occasions, stating that
sometimes the plaintiff is in a better position to prove something about them
is false, hence the obligation of proving the statements can be a violation of
Article 102 of the Convention. Such example is found in the case of Lingens v.
Austria3, when the Court noticed that the fact on which Lingens based his value
judgment was indisputable as well as that he acted in bona fide.
12
13
Transferring the burden of proving from the plaintiff onto the defendant
was also criticized by special rapporteurs and representatives of freedom
Law on Legal Proceedings in FB-H (Sarajevo, 2003), Official Gazette of FB-H 53/03, entered into force 28 October 2003, http://www.almaprnjavorac.com/zakoni/Zakon_o_
parnicnom_postupku_FBiH_Integralni.pdf (accessed 28 July 2011).
1
2

3
200
WHEN DEFENDANTS CARRY THE BURDEN OF PROOF

The general stance of the European Court which is not incompatible to Article
10 of the Convention states that the burden of proof for defamatory statements
in civic proceedings belongs to defendants, which can be used to justify the
stance of domestic court practice regarding this issue.
In the case of McVicar v. United Kingdom4, with regard to burden of proof, the European Court reiterated that special reasons were necessary for a newspaper to be
free of the obligation of verifying facts used for defamation of a person. McVicar
is a famous British journalist who, in mid-1995, published an article where he insinuated that a famous British athlete, Linford Christie, used doping in order to
improve his chances in a competition. In this article, the author states that:
14
On the basis of circumstantial evidence many believe, but cannot prove that Christie
has been taking performance enhancing drugs ... If he has been outwitting the testers for years, it is extremely unlikely that Christie will be caught in the few months
left before his likely retirement from competitive sprintingHe also shows most of
the physical, behavioral and psychological features of an athlete that regularly uses
steroids.
Christie commenced an action in the Court for defamation against the applicant,
the magazines editor, and the publishing company. The jury determined that
the meaning of the disputable article was that the famous athlete was a cheat
who regularly used banned performance-enhancing drugs in order to have better results in competitions. The jury ordered that the plaintiff should be paid
for expenses of the procedure, while Christie himself did not ask for any kind of
compensation. The European Court established that special reasons were needed for one newspaper to be free of the obligation of verifying defamatory facts
for a private person. In this specific case, the source of incriminating statements
was not clear and there could have been serious consequences for the future of
McVicar v. United Kingdom (46311/99), 7 May 2002, http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (accessed on 23 March 2012).
4
201
BURDEN OF PROOF IN LITIGATORY PROCEEDINGS
of expression of the United Nations, the Council of Europe, the Organization

for Security and Cooperation in Europe, the Organization of American States
and the African Commission on Human Rights and Rights of Peoples. Participants at the OEBS/OSCE 2003 conference in Paris emphasized that transferring
the burden of proving is an unacceptable deviation from a general principle
of presumption of innocence based on which the burden of proving belongs
to the plaintiff, although this could be related only in the context of criminal
proceedings regarding defamation.
this athlete. Moreover, the journalist made sure to thoroughly verify these facts
and to check if these were reliable only after the charges were made. Having in
mind these elements, the Court stated:
As for the allocation of the burden of proof in relation to the issue of justification,
this did not interfere with freedom of expression hence the judgment of the Court in
Britain has not violated Article 10 of the Convention.
We should remind ourselves that in the abovementioned judgment of the European Court in 2009, Europapress Holding d.o.o. v. Croatia5, with regard to the
burden of proof, it was stated that:
15
The Court observes at the outset that in the above civil proceedings for defamation the
applicant company was given an opportunity to prove the veracity of the published information. Contrary to the applicant companys claims concerning the assessment
of evidence and the standard of proof used by the domestic courts in those proceedings, the Court considers that this task was not unreasonable or impossible
in the circumstances [bolding by author].
The stance that the burden of proof of a disputable expression belongs to the defendant is also the stance of the Supreme Court of FB-H in judgment No. G-45/05 of
19 April 2005:The burden of proof regarding the veracity of defamatory statements belongs to the defendants because they are assumed to be false until the opposite is proven . In this case, the defendants did not prove their statements and the Supreme
Court of FB-H concluded that the expression in question was defamatory.
The Supreme Court of RS expressed its opinion on who needs to carry the burden of proof when it comes to the veracity of information which was published,
in revision of judgment No.118-0-Rev-09-000424 of 12 February 2010:
According to Article 5 of the Law on Protection against Defamation, defamation is
stating or disseminating false expression which causes damage. The content of the
expression therefore must be false. The burden of proving the veracity of statements normally belongs to the defendant and the burden of proving the existence of such statements belongs to the plaintiff.6 [bolding by author]
16
ABSOLUTE TRUTH SHOULD NOT BE PROVEN

When talking about the fact that the defendant (usually a media outlet or a journalist) is obligated to prove the veracity of statements, we have to remind
ourselves that, according to media law, journalists cannot be required to provide
Europapers v. Croatia (25333/06) , 22 October 2009, http://cmiskp.echr.coe.int/tkp197/
5
Judgment of the Supreme Court of FB-H (No. G-45/05),19 March 2005.
202
Moreover, Article 7 of the Law on Protection against Defamation of FB-H7 prescribes that there is no liability for defamation in case the expression is a substantial truth and if its irrelevant elements are false, while Article 6 of the Law of RS8
states that there is no liability if the expression is substantially true. Therefore, in
the cases when published information is not absolutely true, but substantially
true, the court shall make the defendant free of charges of defamation, but has
to be careful when determining what a substantially true expression in fact is.
17
18
This shows that courts have the very delicate and difficult task of determining
whether there is defamation and liability in every specific case, due to which it is
necessary for judges to constantly be educated in this regard and to follow the
practice of domestic courts as well as of European Court of Human Rights.
As for the facts related to the cause and amount of damage, the burden of proof
obviously belongs to the plaintiff, who must prove that pecuniary or non-pecuniary damage truly occurred as well as the amount of this damage. The way
in which the occurrence and amount of non-pecuniary damage can be determined has already been mentioned in pervious chapters.
Decision of Sarajevo Cantonal Court No.P 5/04 of December 2004, regarding
the proof of the existence of financial benefits gained by the defendant by publishing defamatory information, states the following:
The opinion of this Court is that during the procedure, the second plaintiff did not
prove that the second defendant gained financial benefits by stating false facts
about him, nor did he prove the amount of such benefits (Article 10, paragraph 1
of the Law on Protection against Defamation) and the burden of proof for these
No. 59/02, entered into force in 2002, http://www.vzs.ba/index.php?option=com_cont
ent&view=article&id=209:zakon-o-zatiti-od-klevetefbih&catid=9:novinarskizakoni&I
temid=12 (accessed 23 March 2012).
7
Law on Protection against Defamation of RS (Banja Luka, July 2001), Official Gazette of RS No. 37/01, entered into force on 1 August 2001, 2001, http://www.vzs.
ba/index.php?option=com_content&view=article&id=210:zakon-o-zatiti-odkleveters&catid=9:novinarski-zakoni&Itemid=12 (accessed 23 March 2012).
8
203
BURDEN OF PROOF IN LITIGATORY PROCEEDINGS
the same degree of establishing veracity of facts as in a court procedure, and it

is not necessary to have the evidence of absolute veracity of factual statements
for freedom of expression and publishing them. Instead, it is sufficient to have
the published information verified first, in accordance with the circumstances of
a specific case, that is, in accordance with standard journalistic professional duty.
This would mean that, in a court procedure, journalists are in fact not required
to prove the absolute veracity of published facts, but the abovementioned degree of possible veracity. It is also important for courts to approach this issue
correctly and to evaluate the veracity of expressions in media in line with the
abovementioned standards in every individual case appearing before them.
claims belonged to the plaintiff.

Based on all this, it can be concluded that the burden of proof in court procedures is allocated among parties so that both the plaintiff and defendant are
obligated to prove their statements. However, the main obligation, that is, the
burden of proving the veracity of facts in a disputable expression, still belongs
to the person who published it. Therefore, when stating and disseminating possibly disputable information, attention should first be paid to the way in which
these facts can later be proven in a court procedure.
Once again, it should be emphasized that quoting a confidential source of information or relying on the fact that the information was taken over from another
media cannot be sufficient to make the person who states or disseminates the
expression free of liability for possible defamation.
204
Mladen Srdi
The relation between media and judicature is a current issue because media often follow court procedures. However, opinions on the way they should do that
vary. On one hand, media often make very negative judgments about the work
of the judicature; on the other hand, courts and prosecutions are not transparent enough and sometimes they openly show hostility towards the media. It
seems that there is a mutual misunderstanding between media representatives
and judicature regarding their roles in a democratic society. The media certainly
have the right, or even the obligation, to follow court procedures and the situation in judicature and to inform the public about it. The real question here is
how to do this the right way, so that it would not disrupt the integrity of juridical
system and maintain high professional standards.
The protection of authority and impartiality of courts is extremely important
and it is precisely why paragraph2, Article 101of the Convention also stipulates
the possibility of restricting freedom of expression. This has already been mentioned in the chapter dealing with the presumption of innocence as the principle that must be respected when dealing with a possibly committed criminal
act and the person who committed it.
19
COURTS ENSURE A LEGAL STATE

The main principle of the European Court is that restrictions on public debates
on court and ongoing court procedures are succumbed to a more strict supervision of the Court as the functioning of judicature is vital for every democratic society. Therefore, it is indisputable that there is in the publics interest to become
familiarized through the media with the way in which judicature carries out its
social tasks. On several occasions, the Court highlighted the special role judicature has in society guaranteeing justice, a basic value in a state where there is
the rule of law and where public trust is needed in order for the state to be successful in carrying out its duties. In individual cases, the European Court evaluates the balance between the interest of media to deliver information and the
interest of the public to receive ideas on issues of general importance discussed
before courts, and possible negative consequences of the expression when it
1
205
FREEDOM OF EXPRESSION AND THE PROTECTION OF AUTHORITY AND IMPARTIALITY OF JUDICATURE
FR E E D OM OF EX PRESSION AN D THE PR OTEC TIO N O F

AUT H O R IT Y AN D IMPAR TIAL IT Y O F JUDIC ATUR E
comes to authority and impartiality of legislature.

Some stances of the European Court on the need to correct and moderate reporting on court procedures - hence the reporting cannot have any influence on
court proceedings and should not jeopardize the authority of courts can be seen
in the exposition of the 1997 European Court case Worm v. Austria2. In this case,
Worm was accused of having an unpermitted influence on a criminal procedure
as he wrote an article with the alleged intention of influencing the outcome of the
procedure against Androsch for the criminal act of tax evasion. He was investigating this case since 1978, and he wrote over one hundred articles about it. From the
very beginning, Worm was certain that Androsch committed this crime.
20
In his articles, he not only criticized Mr.Androschs statements, but he also anticipated the outcome of the trial.. Worm was convicted of attempting to have an
unpermitted influence on the outcome of the criminal trial against Androsch.
He was fined 48,000 shillings or sentenced to 20 day of imprisonment in case he
chose not to pay the fine. After that, Worm submitted an appeal to the European
Court that concluded that:
The reasons adduced by the Vienna Court of Appeal to justify the interference with
the applicants right to freedom of expression resulting from his conviction were also
sufficient for the purposes of Article 10, paragraph 2 of the Convention. Interests
of the applicant and the public in imparting and receiving his ideas concerning a matter of general concern which was before the courts were not such
as to outweigh the considerations relied on by the Vienna Court of Appeal as
to the adverse consequences of the diffusion of the impugned articlefor the
authority and impartiality of the judiciary in Austria [bolding by author]. Given
the amount of the fine and the fact that the publishing firm was ordered to be jointly
and severally liable for payment of it (see paragraph 15 above), the sanction imposed cannot be regarded as disproportional to the legitimate aim pursued.
Therefore, the European Court concluded that domestic courts had the right to
believe that sentencing and punishing the applicant was necessary in a democratic society in order to preserve the authority and impartiality of courts in the
sense of paragraph 2 of Article 10 of the Convention. Therefore, there has been
no violation of Article 10 of the Convention in this case.
Although freedom speech violations were not found, the Court determined a
general rule of not being prohibited from commenting on or discussing a case
in public during criminal procedures but, according to the Court, this must be:
Provided that it does not overstep the bounds imposed in the interests of the proper
Worm v. Austria (83/1996/702/894), 1997, http://www.iidh.ed.cr/comunidades/
libertadexpresion/docs/le_europeo/worm%20v.%20austria.htm (accessed on 28 July
2011).
2
206
PRESSURING LEGISLATURE IS NOT ALLOWED

In the case of Prager and Oberschlick v. Austria3 of 1995, the published text severely
criticized Austrian criminal judges. It accused them of being arrogant, and that
they harass and ignore the presumption of innocence. The text referred to some
judges by their full name, but it was an attack on all criminal judges.
1
The source for his text, according to the first applicant, was, beside his personal
experience gained when he attended trials, the statements of lawyers and legal
correspondents, as well as reports of university researchers. The applicants were
found guilty of defamation.
The Court concluded that, beside the fact that press is one of the ways in which
politicians and the public control judges when performing their functions, a
special role of judicature in a society has to be taken into account.
It concluded that a fundamental value in any legal society is having the publics
trust. Therefore, it can be necessary for this trust to be protected from destructive
attacks that are essentially false, especially considering the fact that judges are under an oath of secrecy that prevents them from responding to criticism. The Court
concluded that the applicants were not found guilty because of the criticism itself, but because of the scope of accusations, which turned to be unnecessarily prejudicial due to the lack of sufficient factual basis [bolding by
author]. Furthermore, the Court determined that the research conducted by the first
applicant was not sufficient to support his statements. Therefore, the Court concluded that the interference was proportional to its legitimate goal.
According to this, the practice of the European Court so far showed that it is
not allowed to have any kind of pressure, not even verbal, that aims to affect
the process and outcome of a court procedure on the judicature, and it is not
allowed to express opinions or information which offend the reputation and
dignity of judges in a harsh manner. It is not allowed to input dishonorable
motives to judges decisions or to attribute illegal actions to them, because
this could undermine the judicatures authority. This jeopardizes the right to
fair and impartial trial guaranteed by Article 6 of the Convention.
Prager and Oberschlick v. Austria (13/1994/460/541), 26 April 1995, http://cmiskp.echr.
coe.int/tkp197/search.asp?skin=hudoc-en (accessed 23 March 2012).
3
207
administration of justice, reporting, including comment, on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement under Article 6, paragraph 1 of the of the Convention that hearings be public, in order
not to jeopardize the authority and impartiality of courts and the right of defendant
to fair trial.
In the real world, it often happens that people who work in the judicial system
or perform judiciary functions criticize the judicial system; this can be sanctioned
and be the subject of disciplinary measures. This means that statements of lawyers
and judges can also be disputable. In these cases, the European Court sets the
standards for deciding whether restrictions of freedom of expression of people
directly involved in court procedures is a violation of Article 10 of the Convention.
LIMITATIONS OF FREEDOM OF EXPRESSION PROTECTING THE FUNCTION OF JUDICATURE IN A SOCIETY

In the famous 1998 case, Schopfer v. Switzerland4, the European Court decided
that the disciplinary penalty imposed on the applicant by the Association of Court
Lawyers after the comments he made at the press conference about one of his
clients being detained, was not a violation of Article 10 of the Convention. In this
case, the applicant first publicly expressed his complaint on a legal process before
a criminal court and later appealed to the Lucerne Court of Appeal. In the case, the
European Court reiterated the special status of lawyers who are, in light of their
position in dispensing justice, intermediaries between the public and courts.
2
The role of lawyers

According to the practice of the European Court, lawyers have a key role in this
field. The Courts opinion is that lawyers are expected to:
contribute to proper administration of justice, and thus to maintain public confidence therein. Freedom of expression secured to lawyers too, who are entitled to
comment in public on administration of justice, but their criticism must not overstep certain bounds - balance to be struck between various interests involved,
which include publics right to receive information about questions arising
from judicial decisions, requirements of proper administration of justice and
dignity of legal profession. [bolding by author]
Having all this in mind, the Court stated that the disciplinary penalty imposed
on the applicant was necessary in a democratic society.5
3
With regard to this, the judgment of the European Court in the 2002 case of
Nikula v. Finland6 is very important. In this case, the statement was made by a
lawyer involved in court proceedings as a legal representative. Anne Nikula was
4
Schopfer v. Switzerland( 56/1997/840/1046), 20 May 1998, http://www.hrcr.org/safrica/

expression/schopfer_switzerland.html (accessed on 28 July 2011).
4
Ibid.
Nikula v. Finland (31611/96), 21 March 2002, http://cmiskp.echr.coe.int/tkp197/search.

asp?skin=hudoc-en (accessed on 28 July 2011).
6
208
On August 22, 1994, Nikula was convicted of defamation without better knowledge, that is only of expressing an opinion on someones behavior and not because of attributing an act to another person even though it was well-known
that this act did not occur. She was fined and ordered to pay damages and trial
expenses to the state. The applicant submitted an appeal based on Article 10 of
the European Convention. The European Court reiterated that the special status of legal representatives as intermediaries between the public and the courts
provides them with a central role in dispensing justice. Such status is explained
by the usual regulation of behavior of members of the Lawyers Chamber. Moreover, courts, having the key role of guaranteeing justice in a state based on rule
of law, must enjoy public trust. Having in mind the essential role of legal representatives in this field, it is possible to expect them to contribute to adequate
justice dispensing and hence sustaining public trust.
Limitations of acceptable criticism
Furthermore, the European Court reiterated that Article 10 of the Convention
protects not only the essence of expressing ideas and information, but also their
form. Even though legal representatives surely have the right to comment on
dispensing justice, their criticism must not cross certain boundaries. Related to
this, what must be taken into account is the need of achieving a proper balance
between different interests such as respecting the right of the public to get the
information about issues that are the consequences of court judgments and
demanding a certain application of justice and dignity of the legal profession.
The Court noticed that the limits of acceptable criticism in some circumstances
could be wider for state officials than for private persons. This is why the Court
states that: It cannot be said, however, that civil servants knowingly lay themselves
open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when
it comes to criticism of their actions. Civil servants must enjoy public confidence in
conditions free of undue perturbation if they are to be successful in performing their
tasks. It may therefore prove necessary to protect them from offensive and abusive
209
a Finnish lawyer who, in 1992 and 1993, was a defense counsel in a criminal
proceeding related to closing a company in which her client was charged with
helping in and encouraging a fraud and with misuse of entrusted position. The
public prosecutor, T., invited one of the former suspects as a witness. Anne Nikula objected to that and submitted a document in which she claimed that the
strategy of the prosecutor T. was a manipulation and an unlawful presentation
of evidence, and that he was breaching his official duties. These statements
made the prosecutor start a criminal procedure against Nikula.
verbal attacks when on duty.7
Moreover, the Court noticed that the claims of the applicant in the Nikula case
were limited to the courtroom, and they were not aimed at the judge or the
plaintiff in media: It is true that the applicant accused prosecutor T. of unlawful
conduct, but this criticism was directed at the prosecution strategy purportedly
chosen by T... as distinct from criticism focusing on T.s general professional or other
qualities.8 The European Court was also unable to conclude that the applicants
criticism aimed at the plaintiff, as its nature was procedural, was a personal offense. Finally, the Court concluded that there was a violation of Article 10 of the
European Convention because the judgment of the Supreme Court was disproportional to a legitimate goal.
6
Judges and the right to freedom of expression

The European Court dealt with the restrictions of freedom of expression by
judges, in the 2009 case of Kudeshkina v. Russia.9 In this case, Olga Borisovna
Kudeshkina, the judge of Municipal Court in Moscow, made a statement of claim
to the Court in Strasbourg against Russia, where she stated that her right to freedom of expression was violated under Article 10 of the Convention when she
was dismissed from her sitting because of key statements she made in the media. According to her statement of claim, she was the judge appointed to deal
with the case of misuse of authorization of police inspector Zaytsev, who was
accused of conducting illegal activities within the investigation on a big case of
customs and financial fraud involving a group of companies and allegedly some
high state officials. The prosecution asked for the exemption of the applicant
as a judge due to prejudice she allegedly expressed on 23 July 2003. The president of the Municipal Court of Moscow reassigned this case to another judge.
The applicant was interviewed by radio Ekho Moskvy and newspaper Novaya
Gazeta, where she severely criticized the court practice in Russia. It should also
be mentioned that the law on status of judges in the Russian Federation and
the Code of judicial ethics of the Russian Federation make judges obligated to
abstain from making public statements that discredit the judiciary and judicial
system as a whole.
7
The Judiciary Qualification Board of Moscow found that the behavior of judge
Kudeshkina degraded the honor and dignity of a judge, discredited the authority of the judicature and caused a great damage to the reputation of the judicial
7
Ibid.
Ibid.
Kudeshkina v.Russia (29492/05), 26 February 2009, http://cmiskp.echr.coe.int/tkp197/

view.asp?item=1&portal=hbkm&action=html&highlight=Kudeshkina%20%7C%20
v.%20%7C%20Russia&sessionid=89372093&skin=hudoc-en (accessed 23 March 2012).
9
210
In the statement of claim before the European Court, Kudeshkina said that judges, just as all other people, were protected by Article 10, and that interfering in
her freedom of expression was not prescribed by law, thatit had no legitimate
aim, and, finally, that it was not necessary in a democratic society.
In the judgment, the European Court emphasized that Article 10 of the Convention was also applicable to a position held; the applicant, as a civil servant,
had the right to freedom of expression even when the functioning of judiciary
system was regarded the matter of public interest.10 In this case, the Court found
the measure of the Moscow Municipal Court regarding the disciplinary offence
of Olga Borisovna Kudeshkina to be disproportionally severe, and stated that:
8
it could undoubtedly discourage other judges in the future from making statements
critical of public institutions or policies, for fear of the loss of judicial office. Accordingly, it is the Courts assessment that the penalty at issue was disproportionally severe on the applicant and was, moreover, capable of having a chilling effect on
judges wishing to participate in the public debate on the effectiveness of the judicial
institutions.
The abovementioned judgment shows the way in which the European Court decides that the functioning of judicature is a very important matter of public interest that should be open for a free debate in a democratic society. This should
be the case even for the persons that are a part of this system, regardless of their
obligations of loyalty and discretion of public servants and particularly the ones
who work in judicature. The Court also noticed that situations in which court
officials are punished due to their statements could have a chilling effect on
judges and prosecutors speech that is, it could prevent the former from openly
expressing criticism or other opinions on issues related to judicature.
Possibly controversial statements that refer to judges or prosecutors often
appear within debates on problems in the judicature or within the context
of doubting that judicial officials are impartial and independent. These issues
must not be left out of the public debate, as they are important for the public,
especially in a country such as B-H, which is going through transition and judiciary reform. Therefore, when domestic courts have to evaluate statements
referring to judiciary officials, they have to very carefully approach interests
and values in cases of criticism. The courts have to establish the balance between the reputation and honor of a judiciary official and freedom of the press
10
Ibid.
211
profession, all of which constitute a disciplinary offence. This led to the judges
dismissal from her position. The Court decisions that followed, as well as the final
decision of the Supreme Court of the Russian Federation, as the highest instance
in the proceedings, confirmed the decision on dismissal.
to report on matters of public interest and have to decide what the priority
in a democratic society is. This certainly refers to cases when statements truly
tends to contribute to public debates on judicature and the weaknesses of the
judiciary system, and not when they are attacks on judges and prosecutors
due to unpopular decisions or if they aim to affect court proceedings, which
is unfortunately very common in B-H. At the same time, in B-H, cases when
judges or prosecutors press charges on the basis of defamation are very rare.
Still, it is not excluded that this type of cases will appear more often in the future considering that every day we are the witnesses of rough and impugned
statements referring to judges and prosecutors.
Public debates and comments on court decisions
Journalists often complain about the fact that they are forced not to comment
on ongoing proceedings and judgments of first instance since they could possibly influence the courts, nor can they comment on some proceedings decisions. Therefore, it is very important to see whether there is a possibility of public
debate on final judgments in court proceedings. On several occasions, the European Court reiterated that courts do not operate in vacuum and that public
discussion on court decisions, as well as the criticism of the outcome of court
proceedings, cannot be banned. A final court decision per se does not have to
mean that incompatible information and opinions published in media are false.
The legal purpose of limiting ones freedom of speech for the sake of protecting the authority of judicial power is not so much the protection of the justice
systems respectability or even the protection of certain judges and prosecutors
from public criticism. In fact, it is the protection of the function the justice system has in a society, that is creating the conditions where everyone has the right
to a fair trial by an impartial court, set and given the authority by law.
The democratic justice system therefore protects the court of law not for itself,
but for its extremely important function. In order for the justice system to do so
successfully, the citizens must obey the authority of the court and trust courts as
the right places for settling disputes. Therefore, every unjustified malicious demeaning of the court authority by anyone (including the media and reporters)
does not only threaten the justice system or certain judges, but also the important social function the court of law has and the vital interests of every citizen.
RECOMMENDATIONS FOR REPORTING ON COURT PROCEEDINGS

In light of the discussion above, we can make several conclusions about how
court processes should be commented on and followed in the media:
212
It is necessary to abstain from any unpleasant verbal attack that could insult the reputation and dignity of judges, prosecutors and any other court
employees;
Judges or prosecutors can be criticized in certain cases, but the criticism

should be strictly limited to their work in specific situations and in no way
should it refer to their professional and other qualities;
Every possible criticism must be based on a sufficient number of facts;
Presumption of innocence must be respected;
Unless there are extremely justified, drastic reasons and undisputable facts,
it is not allowed to accuse judges of breaking the law or their professional
obligations, since this would not only hurt their reputation, but also the
trust that the public has in the integrity of the entire justice system;
If final court decisions are being commented on, the comments must be
modest and well-argumented, so that no one would personalize the judge
as the decision maker and emphasize their identity, since the decision has
been made in the name of court and not in the name of a specific judge;
There can be debate on the legal opinion of the judges but it should be
done carefully and modestly. It should also be taken into consideration that
reporters, as much as they are professional and mean well, are not qualified
to make legal decisions (which is the job of the court), so they should focus
on their social role, where the interest of the public should be the priority,
but not if it hurts the role and the authority of the court of law in the eyes
in the public;
No one should attempt to influence a court process using the media.
213
Chapter 7
MEDIA AND PRIVACY
Amer Dihana i Mladen Srdi
In Europe, the right to privacy is recognized as a basic human right. Article 8 of

the European Convention on Human Rights defines the right to privacy, as well
as the conditions under which public authorities can interfere in the exercise of
this right:
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of others.1
It is not easy to define the concept of privacy. Solove2 reminds us that most interpretations of privacy are rooted in attempts to understand its essence. There
is a tendency to simplify the term privacy to its most basic characteristics and to
use this term as an expression of many different things.
Privacy, however, is too complex a concept to be reduced to a singular essence. It is a
plurality of different things that do not share any one element but nevertheless bear
a resemblance to one another. () Privacy, in other words, involves so many things
that it is impossible to reduce them all to one simple idea. And we need not do so.3
The concept of privacy has been changing and the perception of this concept
has likewise evolved. When mass media appeared, public figures and celebrities
in particular often experienced violations of privacy by media. Over the years,
notable people began to become more active agents in determining how their
private lives would be made public, and sold aspects of their privacy to media
like merchandize. Lately, the development of new technologies has triggered
changes in the perception of the concept of privacy.4 Public figures are no longer the only ones to to use media to gain publicity about their private lives;
now all citizens, through the use of internet, can easily publish details about
1
Solove, J. Daniel, Nothing to Hide: The False Tradeoff Between Privacy and Security, USA:
Yale University Press, 2011, p.24.
2
Ibid.
Whittle, Stephen and Cooper, Glenda, Privacy, probity and public interest, UK: Reuters
Institute for the Study of Journalism of the University of Oxford, 2008.
4
217
PROTECTION OF PRIVACY
P R OT E C T ION OF PRIVAC Y
MEDIA AND PRIVACY
their private lives, inadvertently making public details about other people too.
This gives citizens greater influence on mainstream media, but simultaneously
increases the misuse of personal data because such technologies and business
practices facilitate the collection, archiving, and use of data for other purposes.
At the same time, individual capacity to manage personal data efficiently is losing its footing.
When considering the evolution of freedom of privacy, one must also consider
how it affects and is affected by freedom of expression, also a basic human right.
The right to freedom of expression can clash with many other rights protected
by the European Convention including the right to fair trial, the right to respect
for private life, and the right to belief and religion. Defining the right to freedom
of expression, Article 10 of the European Convention states:
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 the rights of others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the judiciary.
Like freedom of privacy, the concept and public perception of freedom of expression has changed.5 Freedom of expression is undoubtably a milestone in
democratic societies and a prerequsitive for media to serve its function in society. However, freedom of expression complicates laws that protect privacy.
According to Stratford, the protection of privacy involves a process which aims
to balance two important social interests: respect of a personality and preserving
freedom of expression.6
Courts are charged with determining the definition and protection of privacy7
in individual cases. The European Court itself has emphasized the difficulties in
defining the concept of private life, noting that the border between private and
public sphere varies by case. The role of courts in defining privacy is thus par5
Ibid.
Supra note 2, p.13.
Stradford, Jemima, Striking the Balance: Privacy v. Freedom of Expression under the European Convention on Human Rights, in Colvin Madeleine, Developing Key Privacy Rights,
UK: Hart Publishing, Oxford, 2002. p. 17.
7
218
The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of private life. However, it would be too restrictive to limit the
notion to an inner circle in which the individual may live his own personal life as he
chooses and to exclude therefrom entirely the outside world not encompassed within
that circle. Respect for private life must also comprise to a certain degree the right to
establish and develop relationships with other human beings.9
Media often justifies the intrusion of an individuals privacy by emphasizing
public interest. As Whittle and Cooper say,10 journalists often justify such intrusions by claiming that public figures are hypocrits and are obligated to serve as
role models for others. For example, publishing photos of a tragic car accident is
justified by the need to stress the consequences of driving under the influence.
At the same time, newspapers sensationalize this information by attaching huge
photographs, intriguing titles, and publishing such stories on the front page.
This shows that personal tragedies make newspapers sell well. Still, journalists
and editors do not determine or control public interest. Regulatory and selfregulatory bodies or courts must determine whether intrusions were justified in
the name of public interest when suits are brought before them. In such cases,
public reaction to published texts can be influential in determining the definition of public interest. Finally, legislative bodies can create legal remedies that
influence the definition of public interest.11
DIFFERENCE BETWEEN PRIVATE AND PUBLIC SPHERE

As mentioned at the beginning of the analysis, freedom of expression can come
into conflict with other rights protected by the Convention, such as the right to
fair trial, the right to respect of private life, or the right to belief and religion. A
special problem when making a statement related to public figures is the relation between freedom of expression and the protection of private life, realized
based on Article 8 of the Convention. When such conflict occurs, the court must
Coliver, Sandra, ed. Press law and practice: a comparative study of press freedom in European and other democracies. London: Article 19, 1993, p. 271.
8
Niemietz v. Germany (13710/88), 16 July 1992, http://sim.law.uu.nl/sim/caselaw/Hof.

nsf/e4ca7ef017f8c045c1256849004787f5/4a8709d98fbfacf5c1256640004c19eb?Op
enDocument (accessed 13 May 2012).
9
Whittle, Stephen and Cooper, Glenda, Privacy, probity and public interest, UK: Reuters
Institute for the Study of Journalism of the University of Oxford, 2008.
10
11
Smartt, Ursula, Media Law for Journalists, UK: SAGE Publications Ltd, 2006.
219
ticularly important because the concept of privacy is often redefined by court

interpretations.8 In Niemietz v Germany, the European Court of Human Rights
determined the following:
MEDIA AND PRIVACY
determine which right has priority.

The European Court has emphasized that it is no simple or singular definition for
private life. The distinction between the private and public sphere varies by case.
The main principle is that private and family lives of public figures and officials
should be protected from media reporting according, to Article 8 of the Convention. Information on their private lives can be made public if it directly affects
the public or if it affects how public officials have or do perform their jobs, as
long as precautions are taken to avoid any unnecessary damage to third parties
(usually family members). When political or public persons personally draw the
publics attention to their private lives, the media may comment and report on
this. However, it is noted that details from a politicians private life become a
matter of of public interest if they influence public activities. In the case that private details appear in the public realm, it is rightfully expected to use moderate
expressions when discussing them.
In the case before European Court, Tammer v. Estonia12 (2001), the Minister of Internal Affairs, Edgar Savisaar, was forced to resign in 1995 when secret tapes of his
conversation with other politicians were released to the public. One of the ministers assistants, Ms Vilja Laanaru, accepted full responsibility for the tapes and was
forced to resign. Later, with the help of a journalist (Rusaak), she began publishing
her memoirs, in which she revealed details of her affair and child with Minister
Savisaar, who was married. Laanaru described how she entrusted the child to her
parents and admitted that she sacrificed her child for her career. For many years,
Laanaru occupied numerous political positions connected with Savisaar. The first
marriage of Savisaar was ruined and later on Savisaar and Laanaru got married.
In her book, Laanaru discussed whether she caused Savisaars marriage to fall
apart. After the book was published, and after some parts of it was published in
newspapers, the applicant interviewed Rusaak and questioned whether he had
turned Ms. Laanaru, a bad example for girls who had destroyed Minister Savissars
marriage and abandoned her child, into a hero. The Estonian words used were
offensive but not incorrect. The applicant was sentenced with offending Laanaru.
The European Court determined that although Laanaru knowingly revealed details of her personal life to the public, using offensive words should be observed
both within the context of the events which caused them and their valuability for the public [bolding by author]. The Court concluded that, at the time these
words were used, Laanaru had already resigned. The Court stated that in spite of
her activism in a political party, the impugned terms in relation to Ms Laanarus
private life were not justified by considerations of public concern nor did they
Tammer v. Estonia (41205/98), 6 February 2001, http://sim.law.uu.nl/sim/caselaw/
Hof.nsf/2422ec00f1ace923c1256681002b47f1/4bb492a2031f4480c12569ee0038d9
de?OpenDocument (accessed 28 July 2011).
12
220
Related to this topic, the Constitutional Court of B-H, in its decision No. AP 427/0613,
repudiated the applicants request for compensation damages due to defamation
published in the press (as an offense to his right to private life) because, according
to Article 8 of the Convention, there was no damage as the writings referred to the
applicants activity as a military commander during the war, meaning that it had
to do with his public function a part of his public life. In the abovementioned
judgment, the Constitutional Court of B-H confirmed that Article 8 of the Convention does not protect the relations established in public sphere, and based on
the appeal it can be concluded that facts and proofs offered by the applicant are
concerning precisely his public activities and not private ones. 14
PROTECTION OF PRIVACY IN B-H

The Constitution of Bosnia and Herzegovina recognizes the right to privacy as
a basic human right. It is found in Article 3, paragraph 8 of the Catalogue of Human Rights and defined as the right to private and family life, home and correspondence. The Constitution of Republika Srpska15 explicitly states that privacy
must not be harmed though there are some other provisions of this constitution
which refer to protection of privacy.
Human dignity, physical and spiritual integrity, personal privacy, personal and family life shall be inviolable.16
The Constitution of the Federation of Bosnia and Herzegovina17 states that the
Federation will ensure the application of the highest level of internationally recognized rights and freedoms, including privacy.18
Decision on appeal, applicants: Mladen and Milan Dunerovi, the Constitutional
Court of Bosnia and Herzegovina (AP 427/06), 5 June 2007, http://www.ccbh.ba/bos/
odluke/povuci_pdf.php?pid=91421 (accessed 26 March 2012).
13
14
Ibid.
Constitution of Republika Srpska (1992), Official Gazette of RS 28/94, entered into force
in 1994, http://www.ustavnisud.org/upload/4_8_2009_48_ustav_srpski.pdf (accessed
26 March 2012).
15
16
Ibid., Article 13.
Constitution of the Federation of Bosnia and Herzegovina (Sarajevo, 30 March 1994),

Official Gazette of FB-H 1/94, entered into force 30 March 1994, http://skupstinabd.ba/
ustavi/f/ustav_federacije_bosne_i_hercegovine.pdf (accessed 13 May 2012).
17
18
Ibid., Article 2, par.g.

221
bear on a matter of general importance. Particularly, it was not proven that at

the time of the interview, her private life was the issue of public interest. The
comments of the applicant could therefore not be considered public interest. [bolding by author].
MEDIA AND PRIVACY
It is also important to note that the right to privacy is defined by Article 8 of

the European Convention as having priority over all other definitions in laws
defining this field, because, according to Baki-Mufti, the Constitution defines
rights and freedoms envisaged in the European Convention on Human Rights and
Fundamental Freedoms and in its protocols they are directly applied in Bosnia and
Herzegovina 19 and have priority over all other laws.
1
The question of privacy is not regulated by a specific law; instead, different segments of protection are found in different laws such as the Law on Protection
of Personal Data in B-H20 (2001) which defines the right to privacy regarding
personal citizens data processed by different public bodies, or the Freedom of
Access to Information Act, which regulates the access to personal information
of citizens controlled by public bodies (2001). The Communication Law of B-H21
(2003) prescribes the authorization of the Communications Regulatory Agency
over the protection of personal data and privacy22.
2
Although in our country and throughout the world privacy is usually protected
by the Law on Protection against Defamation, in court practice, violation of privacy is increasingly treated as a violation of basic human rights.23 Strictly speaking, the protection of privacy cannot be fully ensured by the Law on Protection
against Defamation because it links damages to natural or legal person directly
to the expression or dissemination of false facts. Libel, however, is not the only
way to violate privacy rights. Intrusion into someones privacy is not necessarily related to expressing false facts. Therefore, citizens may ask for compensation before courts based on the Convention, which is above local legislation, or
based on the Law on Obligatory Relations, which, in force in both entities, specifies that everyone is obligated to abstain from actions that cause damage to
another person. This includes the damage caused by harming the integrity of
ones personality, personal and family life, and other rights of a personality.24
5
Baki-Mufti, Jasna, Sistem ljudskih prava (System of Human Rights), Sarajevo, MA

thesis, 2002, p.317.
19
Law on Protection of Personal Data of BiH (December 2001, Sarajevo), Official Gazette of
BiH No. 32/01, entered into force on 28 December 2001.
20
21
22
Ibid., Article 3, par. (d).
See: Whittle, Stephen and Cooper, Glenda, Privacy, probity and public interest, UK:
Reuters Institute for the Study of Journalism of the University of Oxford, 2008.
23
See: Kruni-Zita, Ljiljana, Mediji u BiH i prava djeteta- pravni osnov (Media in B-H and
rights of a child legislative basis), http://www.media.ba/mcsonline/bs/tekst/medijiu-bih-i-prava-djeteta-pravni-osnov (accessed 13 May 2012).
24
222
The question of respecting privacy is defined in Article 9 of the Press Code:

The press shall avoid intrusions and enquiries into individuals private life, unless
such intrusions or enquiries are necessary due to the public interest.
The treatment of stories involving personal tragedy shall be handled sensitively, and
the individuals affected shall be approached with sympathy and discretion.25
7
It is necessary to say that violations of provisions of the Code do not succumb

to legal penalties; it is stipulated that the Code is accepted as morally-binding
for journalists, editors, owners and publishers of newspapers and periodicals.26
8
In practice, violations of privacy often occur in articles published in daily newspapers. According to the Press Council report27 based on the monitoring of print
media and with regard to violations of privacy, most violations of the Code refer
to Article 9 (privacy). Such violations make up one third of all violations. The
Report28 shows that it is possible that the actual share of these violations is even
bigger because the violation of Article 4 (discrimination) comes in second primarily due to the specific political situation.29
9
10
11
Privacy is most often jeopardized in news on suicides, connecting the personal

tragedy of one person with other members of his/her family and in publishing
private photos or photos of victim in undesirable circumstances.30 The Press
Council states that suicides should be treated as deeply personal and tragic
acts, hence they should be approached with the greatest discretion possible
and with sympathy,31 and that anonymous persons have the right to anonymous death.
12
13
The Council makes a distinction between public curiosity and public interest, emphasizing that journalists should not publish everything they find, but
Press Code of B-H (Sarajevo, 29 April 1999), Article 9.1, http://www.vzs.ba/index.
php?option=com_content&view=article&id=218&Itemid=9&lang=bs (accessed 26
March 2012).
25
26
Udovii, Z., Halilovi, M., Jusi, T. And Udovii R. 2001.
Press Council of B-H, Report No.2 on continuous monitoring of print media: April-May
2004, http://www.media.ba/mcsonline/bs/tekst/izvjestaj-vijeca-za-stampu-bih-okrsenju-kodeksa-za-stampu-u-2004-godini (accessed 26 March 2012).
27
28
Ibid.
Out of 108 cases of discrimination, 102 cases refer to Glas Srpske, out of which 67
were on the topic of foreign affairs, more specifically, Kosovo.
29
Press Council of B-H, Report No.2 on continuous monitoring of print media: April-May
2004, http://www.media.ba/mcsonline/bs/tekst/izvjestaj-vijeca-za-stampu-bih-okrsenju-kodeksa-za-stampu-u-2004-godini (accessed 26 March 2012).
30
31
Ibid., p.10.
223
PRIVACY OF CITIZENS IN DAILY NEWSPAPERS IN B-H
MEDIA AND PRIVACY
should adhere to the principle that journalistic curiosity should not harm any
person. According to the Council, an exception to this rule are suicides of public
figures or cases of spectacular acts in front of a mass of people, in which case
publishing full data or initials can be justified.32
14
In spite of the data indicating that the violation of privacy in daily newspapers is
frequent, it seems that this issue still does not enjoy adequate public attention.
Debates on these issues are still rather sporadic. The data of the Press Council on
the number of submitted complaints point to the fact that between 2001 and
2009 there have been 229 complaints on different bases.33 Of the total number of complaints submitted to the Press Council in nine years, only 10 of them
(3%) refer to the violation of Article 9 of the Press Code.34 However, in the past
two years, the number of complaints has increased, with 16%35 of all complaints
referred to privacy in 2010 and 11% in 2011.36 Even though the number of complaints submitted to the Council regarding the violation of privacy increased,
the numbers are not large enough to indicate a clear trend. The actual number
of violations of the right to privacy recorded by independent monitoring of the
press (136 in two months) and the number of complaints regarding such violations (42 in 11 years) is stil greatly disproportionate.
15
16
17
18
32
Ibid.
Dihana, Amer 2010 , U borbi za nezavisnost mediji zaboravili na svoju odgovornost

(While fighting for independece, media have forgotten about their responsibility), Novi
pogledi (New perspectives), No.17, Sarajevo.
33
34
Ibid.
35
See: Press Council, Overvew of cases in 2010, http://vzs. ba (accessed 13 May 2012).
36
See: Press Council, Overvew of cases in 2011, http://vzs. ba (accessed 13 May 2012).
224
Chapter 8
LIMITATIONS OF FREEDOM OF MEDIA AND
PROTECTION OF NATIONAL SECURITY
Sevima Sali-Terzi
A popular Government, without popular information, or the means of acquiring it,

is but a Prologue to a Farce or a Tragedy; or, perhaps both.
James Medison1
19
Public access to information owned by public authorities2 is extremely important for the development and sustainability of any free and democratic society. It
enables public debate on important issues of public interest, such as corruption
and the wrongdoings of government or official authorities. The free access of
the public to information is useful for the authorities as well, because transparent and open decision-making processes enable the public to trust the authorities and to support their work, especially when it comes to information dealing
with the work of intelligence services and other organs in charge of national
security. It is precisely in this area, however, where there is increased potential
for severe violations of human rights such as the right to privacy, the right to fair
trial, and other related rights.
20
The protection of information important for national security is a significant

function of every state because national security is one of the preconditions
for the full enjoyment of guaranteed human rights, including the right to information. Therefore, in certain circumstances, national security requires a certain
degree of protection. Still, this protection has to be limited in its scope and it
has to be reasonable and proportional to needs of the public to have access to
information and documents owned by public authorities. If the system of information protection functions properly, then only a limited amount of delicate information requires protection. However, this is only as long as the information is
considered delicate. Less delicate information requires less protection, whereas
some does not require any protection at all.
Letter of James Madison to W.T. Barry (4. 8. 1822), in Gaillard, Hunt, ed. The Writings of
James Madison. 9 vols. New York: G. P. Putnams Sons, 1900-1910.
1
The Law on Free Access to Information of B-H defines public authority as the organ
of B-H found in any of following categories: a) executive body; b) legislatiove body;
c) judicial body; d) a body appointed or established by law to carry out a public function; e) any other administrative authority; f ) a body that is either owned or controlled
by a public authority (paragraph 2, Article 3). Law on Free Access to Information of
B-H (Sarajevo, October 2000), Official Gazzette of B-H, 28/00, Came into force on 17
November 2000.
2
227
INTERNATIONAL STANDARDS RELATED TO FREEDOM OF EXPRESSION, ACCESS TO INFORMATION AND THE PROTECTION OF NATIONAL SECURITY
INTERNATIONAL STANDARDS RELATED TO FREEDOM OF EXPRESSION,

ACCESS TO INFORMATION AND THE PROTECTION OF NATIONAL SECURITY
LIMITATIONS OF FREEDOM OF MEDIA AND PROTECTION OF NATIONAL SECURITY
ACHIEVING FAIR BALANCE

Even though in the past 10-15 years there has been great progress in the recognition and protection of the right to access public information, the full application of laws regulating this issue are often limited by regulations dealing
with protection of information on the basis of national security and on other
internationally-accepted bases, including the protection of information the priority of which is the protection of interests of those who rule, that is, the prevention of public embarrassment, concealing the information about human rights
violations or violations of the law, concealing corruption or other irregularities
in the work of public authorities, strengthening the rule and continuous rule of
a certain political party or ideology, controlling the riots of workers, protection
of national economy, etc.
A very complex issue is achieving the fair balance between the right of the public to
be informed and the measures of protection of certain data due to national security.
The guiding principle for solving such dilemmas can be found in relevant decrees
of international documents on human rights prescribing freedom of access to information and freedom of expression as internationally recognized human rights.
Internationally, one the most important documents is the Universal Declaration of
Human Rights (Article 19) and International Covenant on Civil and Political Rights,
where the freedom of expression is enshrined in Article 19. At a regional level, the
European Convention for the Protection of Human Rights and Fundamental Freedoms (in Article 10) addresses the right to freedom of expression and, related to
this, the practice of the European Court of Human Rights. In fact, the Constitution of
Bosnia and Herzegovina states that the European Convention is applied directly and
takes precedence over all other laws, and all courts, state organs, and institutions are
to apply the rights guaranteed by the European Convention.
Having this in mind, it is important to indicate the consistent perspective of the
European Court regarding the right of the public to receive information of public interest. The practice of the European Court in this field has developed in
relation with the freedom of the press that delivers information and ideas about
such issues.3
21
In relation to the interests protected by Article 10 of the European Convention,

the European Court regularly argues that laws cannot allow arbitrary limitations
of freedom of expression and on receiving and delivering information and ideas
because such limitations can easily become a form of indirect censorship, where
authorities create obstacles for information gathering. The European Court has
For example, see: Observer and Guardian v. United Kingdom (13585/88, p. 59), 26 November 1991, http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed
26 March 2012); Thogeir Thorgeirson v. Iceland (13778/88, p. 63), 25 June 1992, http://
cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen (accessed 26 March 2012).
3
228
22
The functions of media also include providing space for public debates. However,
as the European Court has concluded, this function is not limited only to media
and professional journalists, and refers also to non-governmental organizations
and individuals; the Court has admitted on several occasions that civil society has
a significant contribution to debates on public affairs, and, along with the press,
serves as a social watchdog.5 Therefore, obstacles prescribed by the authorities
that disable or prevent access to information of public interest can be discouraging for those who work in the media or other similar, socially important fields
when it comes to dealing with issues of public interest. As a consequence, media and civil society in general would be unable to perform their social role of a
watchdog and to provide correct and reliable information to the public.6
23
24
The European Court of Justice is in charge of deciding whether the access to

documents of organs of the European Union (the European Parliament, Council
and Commission) is denied contrary to principles and standards contained in
Regulation 1049/2001. Regarding several decisions in favor of applicants, this
Court emphasized that the exception from the general principle that the public
has to have the widest possible access to documents owned by institutions, has
to be strictly interpreted and applied in order not to make the application of this
principle questionable. Therefore, the stance of the European Court of Justice
is that having a document requesting the access that has to do with interests
protected by exceptions prescribed is not sufficient for justification the application of this exception. What is necessary is for every specific case to determine is:
1) whether the access to a requested document would actually and specifically
diminish the protected interest, and 2) that there is no public interest which is
stronger and which justifies disclosing the requested document.7
25
Considering the importance of this issue and the diversity in state practices,
besides the protection of freedom of information and expression at the global
and regional levels, there is also the need to create more specific standards
of legal approach when it comes to information owned by public authorities.
See: Tarsasag A Szabadsagjogokert v. Hungary (37374/05, p. 26-27), 14 April 2009, http://
cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (accessed 26 March 2012).
4
Ibid., and see: Dammann v. Switzerland (7751/01, p. 52), 25 April 2006, http://
sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/df801467
7f05ccd4c125715a003942bf?OpenDocument (accessed 26 March 2012).
5
Judgment of Tarsasag A Szabadsagjogokert v. Hungary, Supra note 4, p. 38.
See: Sweden v. the Commission (C-64/05 P, ECRI-11389, p. 66), 2007, or Access Info
Europe v. the Council of European Union (T-233/09), 2011, http://www.statewatch.
org/news/2011/mar/eu-ecj-access-inf-judgment-mar-11.pdf (accessed 17 September 2011).
7
229
concluded that, as information gathering represents a preparatory phase in

journalism, it is the protected part of freedom of the press.4
This approach would be based on human rights, on internationally accepted

principles of peoples community, as well as on state practices. These practices
can also be analyzed on the basis of judgments of international and national
courts and tribunals that would represent an additional guide for governments
when regulating the system of data protection.
JOHANNESBURG PRINCIPLES
In 1995, a group of experts in the field of international law, national security, and
the protection of human rights formed a document known as Johannesburg
principles on national security, freedom of expression and access to information (Johannesburg principles).8 The importance and universal application of
this document are also reflected in the fact that Special Rapporteur of the UN
on freedom of opinion and expression quoted this document in his reports between 1996 and 2001 and that these are the standards which have been quoted
by the UN Commission of Human Rights in its annual resolutions on freedom of
expression regularly since 1996.
26
Johannesburg principles emphasize that it is imperative for people to have the

access to information referring to national security in order to have the possibility of supervising the work of public authorities and to fully participate in the
life and development of a democratic society. All the obstacles to public and
independent supervision created in the name of national security increase the
risk of illegal and corruptive behavior of the authorities and other misuses that,
due to the protection of such information, can remain unrevealed. In addition,
violations of privacy and other rights of citizens can often occur precisely under
the shield of the protection of national security.
Therefore, the Johannesburg principles emphasize the need to protect the right
of public to be informed. This need would be guaranteed by precise and narrow
laws that will enable the basic demands of rule of law, the need of supervision
over the parliament or other independent institutions, as well as the need for
court protection of these rights before independent courts.
In this context, it is necessary to mention the document called Draft principles
on national security and right to information9, created by experts and special
mandate holders regarding the issues of freedom of expression and information
27
Article 19, Johannesburg Principles on national security, freedom of expression and access
to information, available at: http
://
www
.
article
19.
org
/
data
/
files
/
pdfs
/
standards
/
joburgprinciples.pdf (accessed 3 September 2011).
8
Draft Principles on National Security and the Right to Information (adopted on 1 July
2011), http://right2info.org/resources/publications/national-security-and-right-toinformation-as-of-july-1 (accessed 3 September 2011).
9
230
This is not a binding document and it serves as an instrument for further directives to governments, legislative and other regulatory organs, proposers of
laws, supervisory bodies and civil society which deal with the most important
questions for the relation of national security and right to information significant for national security, and especially with information influencing human
rights and responsibility in a democratic society. The Draft of the principles also
takes into account the fact that the information not classified on the basis of national security can still be denied to the public on some other basis recognized
by international law, such as international relations, fair trial, rights of parties in
court proceedings, protection of criminal investigations, privacy and commercial secrets. However, these bases always undergo the principle of test of public
interest, meaning that the information cannot be denied when public interest
of accessing certain information is stronger than the interest of protecting this
information as a secret.
INTERNATIONAL STANDARDS
This document (Draft of the Principles on National Security and the Right to Information) thoroughly elaborates on international standards related to freedom
of expression and access to information. The main goal is for adequate bodies at
state, regional, and international level to take over the steps to make this document available and to discuss it, as well as to adopt and apply its principles in order to fully and progressively realize the right to information. One of the important standards is that public authorities cannot just base their claims on alleged
risks, but they have to provide evidence that this risk actually exists. The law
has to enable every person who requests the access to protected information to
have the opportunity to ask for the court assess of the risk, that is, the basis used
by public authorities to restrict access to the information.10
28
Chapter VI of Draft Principles is concerned with the protection of public officials

who disclose protected information. Principle 39 refers to encouraging and enabling disclosure of serious misuses; under this principle, states should provide
instructions for all organs, especially for agencies or institutions in charge of the
security sector in order to create directives for strengthening this principle.
10
Ibid., Principle 4: Burden on Public Authority to Prove Validity of any Restriction.

231
(UN Special Rapporteur on freedom of opinion and expression, OSCE Media

Freedom Representative, Special Rapporteur on Freedom of Expression of the
Organization of American States and Special Rapporteur of African Commission
of Human and Peoples Rights on Freedom of Expression and Access to
Information), and 13 international non-governmental organizations supported
by Open Society Justice Initiative.
Related to this, Principle 41 states that it is the duty of public officials to disclose, either internally or to an oversight body, the information which cannot be
protected and refers to the following wrongdoings: significant violations of the
law, including human rights violations, significant mismanagement, conflicts of
interest, corruption, abuse of public office, and dangers to public health, safety
and the environment. Such disclosure is called protected disclosure and it is legally protected, while laws have to prohibit sanctioning and revenge in relation
to the persons who realized this right (principle 43), and to prescribe sanctions
for such acts of public authorities towards these persons.
Furthermore, the Draft Principles also contain the international standard of
protection of public officials from penalties, that is, of those officials who are in
charge of providing information and who disclose some protected information
that they reasonably and in good faith believe can be publicly stated.
WHY PUBLIC INTEREST TEST IS IMPORTANT

As for the persons who have the access to classified information, international
standards contained in the Draft Principles prescribe that they can be sanctioned for disclosing the classified information on the basis of national security
in case it is proved that:
1. the information was legitimately classified pursuant to national law and these
Principles;
2. the disclosure violated a narrowly drawn statute criminalizing disclosure of a
clearly identified and limited category of information;
3. the disclosure caused identifiable and significant harm to national security
that outweighed the public interest in publication of the information;
4. the person did not exhaust internal reporting procedures unless they might
be effective where the disclosure concerns a matter that is of immediate and
serious harm to public health and safety and/or concerns the commission of
a significant crime.
As for sanctioning persons who are not authorized to access the protected information, the standards prescribe that they cannot be punished just for possessing such information, as well as that they cannot be sanctioned for disclosing
protected data in case public authorities prove that:
1. the information was legitimately classified pursuant to national law and these
Principles;
2. the disclosure violated a narrowly drawn statute criminalizing disclosure of a
232
3. the disclosure caused identifiable and significant harm to national security

that outweighed the public interest in publication of the information;
4. the person knew, or reasonably should have known, that such harm was likely
to be caused by the disclosure.
And finally, one internationally accepted standard contained in the Draft Principles is the protection of journalistic sources. Namely, international standards
clearly and undoubtedly state that no journalist or other person who does not
have authorized access to classified information may be compelled to reveal a
confidential source of unpublished materials in an investigation concerning unauthorized disclosure of information to the press or public (Principle 47).
The abovementioned standards are modern standards of access to protected
data in democratic states. Their adoption and application ensures the protection
from too strict limitations of the access to information and lack of transparency
of public authorities. In this way, the public is able to receive the information of
public interest no matter if they are protected in the way that public authorities can apply the test of public interest in every case. This enables the balance
between the right of the public to free access to information and the need to
protect certain information, that qualifies as an exception from the general rule
on freedom of access to information, and ensures the protection of both people
authorized to access protected information and people without such access, including journalists and journalistic sources.
233
clearly identified and limited category of information;
DISCLOSING SECRET IN CRIMINAL CODES OF B-H

Sevima Sali-Terzi
One of the important functions of every state is the protection of information

of national security interest, as well as of the data that can be protected on a
different basis recognized by international law (foreign policy, military issues,
fair criminal proceedings, privacy protection and similar). However, this protection has to be limited, sensible, and proportional to the publics need to access
the information. Therefore, only a certain number of very delicate information
require protection and only for a limited amount of time. Other types of information require less or no limitations of access.
Under particular conditions, disclosing protected information can become the
subject of prosecution and criminal punishment. In such cases, when passing and
applying laws international standards need to be taken into account. These standards clearly prescribe the span of protection of information, the obligation of
authorities to prove the need for certain information to be protected, obligation
of legislator to prescribe the possibility of court reviewing decisions on protection
of certain information made by public authorities, and conditions for the prosecution and punishment, as well as the protection of persons who disclose protected
information, both authorized and unauthorized to access such information.1
29
The purpose of this analysis is to show whether these international standards

are accepted in criminal laws of B-H or not and if they are, to what extent.
CRIMINAL CODES IN BOSNIA AND HERZEGOVINA

B-Hs criminal code2 prescribes the following in the amended Article 1643:
30
31
1. An official or responsible person in the institutions of Bosnia and Herzegovina

or a military person, who is authorized to classify data or to access secret data
and who without authorization communicates, conveys or in any other way
makes accessible to another secret data, or obtains secret data with an aim of
For more information about international standards see: International standards related
to freedom of expression, access to information and the protection of national security.
1
Criminal Code of B-H (Sarajevo, 24 January 2003), Official Gazette of B-H No. 3/03,
entered into force in 2003, http://www.mup.vladars.net/zakoni/bh_lat/KRIVICNI%20
ZAKON%20BOSNE%20I%20HERCEGOVINE%20(Sluzbeni%20glasnik%20BiH,%20
broj:%203.03).pdf (accessed 26 March 2012). See also: Official Gazette of B-H 32/03,
37/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07 and 8/10, available at: http://www.mup.
vladars.net/index2_lat.php?st=zakoni/zakoni_bih_lat (accessed 26 March 2012).
2
Official Gazette of B-H No. 53/06.
234
2. The punishment referred to in paragraph (1) of this Article shall be imposed on

whoever, with an aim to make an unauthorized use of secret data, avails himself unlawfully of secret data or who communicates, conveys or in any other
way makes accessible to another such secret data without a permit; and on
whoever communicates, conveys or in any other way makes accessible to another or mediates in communicating, conveying or in other way making accessible to another a fact or instrument which contains information and which he
knows to constitute secret data and which he obtained the possession of in an
illegal manner.
3. The punishment of imprisonment for a term between one and ten years shall be
imposed on whoever perpetrates the criminal offence referred to in paragraphs
(1) and (2) of this Article:
a) out of greed; or
b) in respect of data classified pursuant to the law as strictly confidential or
with the degree secret, or as state secret or with the degree top secret; or
c) for the purpose of communicating, conveying or in other way making accessible or using the secret data outside of Bosnia and Herzegovina.
4.
If the criminal offence referred to in paragraph (1) and (3) of this Article was
perpetrated by a person who pursuant to the Law on Protection of Secret Data
has legal authorization to classify data or to access secret data of a degree in
respect of which the criminal offence was perpetrated, the perpetrator shall be
punished:
a) for the criminal offence referred to in paragraph (1) of this Article by imprisonment for a term not less than three years;
b) for the criminal offence referred to in paragraph (3) of this Article by imprisonment for a term not less than five years.
5. If the criminal offence referred to in paragraphs (1), (2) and (3) of this Article
has been perpetrated during a state of war or imminent war threat or a state
of emergency or when an order for the engagement and employment of the
Armed Forces of Bosnia and Herzegovina is issued, the perpetrator shall be punished by imprisonment for a term not less than five years.
6. If the criminal offence referred to in paragraph (1) and (4) of this Article was
perpetrated by negligence, the perpetrator shall be punished:
235
conveying it to an unauthorized person, shall be punished by imprisonment for

a term between six months and five years.
a) for the criminal offence referred to in paragraph (1) of this Article by a fine or
imprisonment for a term not exceeding three years;
b) for the criminal offence referred to in paragraph (4) of this Article by imprisonment for a term between three months and three years.
7. If the criminal offence referred to in paragraph (6) of this Article was perpetrated in respect of data classified pursuant to the law as strictly confidential or
with the degree secret, or as state secret or with the degree top secret, the
perpetrator shall be punished by imprisonment for a term between six months
and five years.
8. Provisions of paragraphs (1), (3), (4), (5), (6) and (7) of this Article shall also be
applied to a person who without authorization communicates, conveys or in
any other way makes accessible to another secret data, after his function as an
official or responsible person in the institutions of Bosnia and Herzegovina or as
a military person or as a person authorized to classify data or to access secret
data has ceased.
9. There shall be no criminal offence of disclosure of secret data if somebody
makes public or mediates in making public secret data the contents of which
are in contravention with the constitutional order of Bosnia and Herzegovina,
with an aim of disclosing to the public the irregularities attached to organizing,
performance or management of the office or with an aim of disclosing to the
public the facts which constitute a violation of the constitutional order or of an
international agreement, provided that the making public has no substantial
prejudicial consequences for Bosnia and Herzegovina.
FB-Hs Criminal Code4 prescribes the felony Disclosing a Secret of the Federation in the following way in Article 158:
32
1. An authorized person, who in contravention of law or regulation of the Federation passed on the basis of law, passes on or renders accessible a secret of the
Federation entrusted to him, to another person, shall be punished by imprisonment for a term between one and ten years.
2. Whoever discloses or passes on to another person or mediates in disclosing information or a document which he knows to constitute a secret of the Federation, and which he obtained in an illegal manner, shall be punished by imprisonment for a term between six months and five years.
Criminal Code of the Federation of B-H (Sarajevo, 9 July 2003), Official Gazette of FB-H
No. 36/03, entered into force 1 August 2003, http://pravosudje.ba/vstv/faces/vijesti.
jsp?id=15332&vijesti_jezik=B (accessed 26 March 2012). See also: Official Gazette of
FB-H 37/03, 21/04, 69/04, 18/05, 42/10 and 42/11.
4
236
4. An authorized person who perpetrates the criminal offence referred to in paragraph 1 of this Article out of negligence, shall be punished by imprisonment for
a term between six months and five years.
5. There shall be no criminal offence referred to in paragraph 2 of this Article, if
somebody makes public or mediates in making public a secret of the Federation
whose contents are in contravention with the constitutional order of the Federation, with an aim of disclosing to the public a violation of the constitutional
order of the Federation, provided that the making public does not undermine
the security of the Federation.
Republika Srpskas Criminal Code5 prescribes the felony Disclosing a Secret
of Republika Srpska in the following way, in Article 305:
1
1. Whoever discloses or conveys to unauthorized person or renders accessible

information or a document entrusted to him or obtained by him in any way,
which constitutes a state secret of Republika Srpska, shall be punished by
imprisonment for a term between one and ten years.
2. If the offence referred to in Paragraph 1 of this Article is perpetrated during a state of war or imminent war threat or armed conflict, or if it leads to
the endangerment of the security, economic or military power of the country, the perpetrator shall be punished by imprisonment for a term between
three and fifteen years.
3. If the offence referred to in Paragraph 1 of this Article is perpetrated out of
negligence, the perpetrator shall be punished by imprisonment for a term
between six months and five years.
4. If the offence referred to in Paragraph 2 of this Article is perpetrated out of
negligence, the perpetrator shall be punished by imprisonment for a term
between one and eight years.
Criminal Code of Republika Srpska (Banjaluka, 28 May 2003), Official Gazette of RS No.
49/03, entered into force 1 July 2003, http://www.mup.vladars.net/zakoni/rs_lat/KRIVICNI%20ZAKON%20REPUBLIKE%20SRPSKE%20(Sluzbeni%20glasnik%20RS,%20
broj:%2049.03).pdf (accessed 26 March 2012). See also: Official Gazette of RS 108/04,
37/06, 70/06 and 73/10.
5
237
3. If the criminal offence referred to in paragraph 1 of this Article has been perpetrated during a state of war or imminent war danger, or if it has led to the endangerment of the security, economic or military power of the Federation, the
perpetrator shall be punished by imprisonment for a term not less than three
years.
Criminal Code of Brko District of B-H6 (hereinafter BD) in Article 157 prescribes felony Disclosing a Secret of Brko District of Bosnia and Herzegovina
in the following way:
2
1. An authorized person who in contravention of law or regulation passed on

the basis of law, passes on or renders accessible the secret of the Brko District
entrusted to him, to another person, shall be sentenced to imprisonment for a
term between one and ten years.
2. Whoever discloses or passes on to another person or mediates in disclosing information or a document which he knows to constitute the secret of the Brko
District, which he obtained in an illegal manner, shall be sentenced to imprisonment for a term between six months and five years.
3. If the criminal offence referred to in paragraph 1 of this Article has been
perpetrated during a state of war or imminent war danger, or if it has led
to the endangerment of the security or economic power of the Brko District, the perpetrator shall be sentenced to imprisonment for a term not
less than three years.
4. An authorized person who perpetrates the criminal offence referred to in paragraph 1 of this Article by negligence, shall be sentenced to imprisonment for a
term between six months and five years.
5. There shall be no criminal offence referred to in paragraph 2 of this Article, if
somebody makes public or mediates in making public the secret of the Brko
District the contents of which are in contravention with the order of the Brko
District established by the Constitution of Bosnia and Herzegovina and the
Statute of the Brko District, with an aim of disclosing to the public facts which
constitute a violation of the order established by the Constitution and the Statute or of an international agreement, provided that making it public does not
undermine the security of the Brko District.
WHO CAN BE PROSECUTED FOR DISCLOSING SECRET DATA?

Criminal laws at four levels of B-H (state, entity and Brko District of B-H) prescribe the felony for disclosing secret data (B-H), that is, of a secret of FB-H, RS,
or BD. At the state level, according to paragraph 1, Article 164, the person who
Criminal Code of Brko District of Bosnia and Herzegovina (Brko, 28 May 2003), Official Gazette of BD B-H No. 10/03, entered into force 1 July 2003, http://skupstinabd.
ba/zakoni/12/b/4.Krivicni%20zakon%20Brcko%20distrikta%20BiHSl.glasnik%20
Brcko%20DC,br.10-03.pdf (accessed 26 March 2012). See also: Official Gazette of BD
B-H 6/05 and 21/10.
6
238
In this way, the scope of people who can commit this felony is narrowed down,
which practically means that some other person who accessed secret data in
some other manner and who conveys them to a third person, cannot be prosecuted for this felony, even if this person was aware of the fact that this is the
data classified as secret. Beside this, all three levels incriminate disclosing secret
data under the authority of a person that basically further on narrows down the
scope of people who can be prosecuted for this felony. For an authorized person
who commits this felony, the prescribed punishment is imprisonment for a term
between six months and five years on the level of B-H (par.1, Article 164), one
and ten years on the level of FB-H (par.1, Article 158), and on the level of BD B-H
(par.1, Article 157).
Paragraph 3, Article 1 of the Criminal Code of B-H defines this term: Official person
means: a person elected or appointed to legislative, executive and judicial office within
Bosnia and Herzegovina and other national and administrative institutions or services
which perform particular administrative, expert and other duties, within the rights
and liabilities of the authority that has founded them; a person who continuously or
occasionally executes official duty in the aforementioned administrative bodies or
institutions, an authorized person in a business enterprise or another legal entity that
has been entrusted with the execution of public authorities by law or other regulations based on the law, who performs certain duties within the framework of the given
authority; and other persons who are performing specific official duties, with or without
remuneration, as stipulated by law or other regulations based on the law.
7
Paragraph 5, Article 1 of the Criminal Code of B-H defines this term: Responsible person is a person in a business enterprise or another legal entity who, in the line of duty
or on the basis of specific authorization, has been entrusted with a portfolio related
to the implementation of law or regulations based on law or general act of a business
enterprise or other legal entities in managing and administrating the property, or is
related to managing a productive or some other business process or supervision of such
processes. Official person as defined in paragraph 3 of this Article is also considered to
be a responsible person when it comes to actions where a responsible person is alleged
as a perpetrator, providing that such actions are not stipulated as a criminal offence
under the chapter dealing with criminal offences against official and other responsible
duties, or as criminal offences of an official person stipulated under some other chapter
of this Code or another law of Bosnia and Herzegovina.
8
This term is defined in paragraph 9, Article 1 of the Criminal Code of B-H: Military
person, in terms of this Code, is a military professional or a person on the reserve force,
while in service with the Armed Forces of Bosnia and Herzegovina, pursuant to the Law
on Service in the Armed Forces of Bosnia and Herzegovina.
9
239
committed the felony of disclosing secret data can be an official7 or responsible

person8 in institutions of Bosnia and Herzegovina or military person9 authorized
to classify data or to access secret data. Paragraph 1, Article 158 (CL of FB-H) and
paragraph 1, Article 157 (CL of BD) state that the felony for disclosing a secret
can be committed only by an authorized person which is, according to Article 2
of CL of FB-H and BD, an authorized official, responsible and military person as it
is defined in these decrees.
However, the narrowed scope of people who can be prosecuted for the felony for
disclosing secret data is significantly extended in the next paragraph of given articles of the criminal law of B-H, FB-H and BD. This is how paragraph 2, Article 164
of B-Hs criminal law prescribes that there is the responsibility of any other person
who with an aim to make an unauthorized use of secret data, avails himself unlawfully of secret data or who communicates, conveys or in any other way makes
accessible to another such secret data without a permit, and whoever mediates in
communicating, conveying or in other way making accessible to another a fact or
instrument which contains information and which he knows to constitute secret
data and which he obtained the possession of in an illegal manner.
Practically, such definition can include any person who illegally accesses some
data and who knows that the data is classified as secret, which undoubtedly
includes both journalists and journalistic sources.
At the level of B-H, the punishment for such felony is between six months and
five years of imprisonment, the same as the one for an authorized person. At
the levels of FB-H and BD, this is prescribed as a lighter form of felony, so that
the sentence is lighter compared to the one of an authorized person (one to ten
years compared to six months to five years).
Two conditions have to be fulfilled for this act to be treated as a felony: first, the
committer has to know that the data or the documents are secret, and second,
he or she has to have accessed these data or documents illegally. Although at
a first glance it seems that the burden of proof belongs to the prosecution, in
practice the burden of proof could very easily belong to the defendant. This is
mainly due to the fact that there is not a single decree that clearly establishes
limits and the obligation of prosecution is to prove that all conditions for this act
to be treated as a felony are fulfilled.
Namely, such norms imply that the persons who did not access secret data illegally will not be criminally liable, but there is no precise decree regulating this
other way of accessing. It is hard to assume that secret data can be accessed
accidentally and the Law on Protection of Secret Data10 precisely prescribes who
can access the secret data. In addition, Article 10 of the Law on Protection of Secret Data prescribes that all citizens of B-H who acquire or gain access to secret
data in a manner, which is not contrary to the law, shall assume the obligation
to keep the secret data. Therefore, both criminal laws and the Law on Protection
of Secret Data establish the illegality of acquiring the data as a condition for this
act to be treated as a felony.
6
Law on Protection of Secret Data (Sarajevo, July 2005), Official Gazette of B-H No. 54/05,
entered into force in 2005. See also: Official Gazette of B-H 12/09, http://www.sudbih.
gov.ba/files/docs/zakoni/ba/zakon_o_zastiti_tajnih_podataka_-_izmjena_
12_09_-_bos.pdf (accessed 26 March 2012).
10
240
When talking about unauthorized persons, it could be concluded, on the basis

of the abovementioned decrees of criminal laws and the Law on Protection of
Secret Data, that, in relation to the illegality of acquiring these data, the starting
presumption would be that they were acquired illegally. This happens especially
because the Law on Protection of Secret Data does not stipulate any possibility
for anyone except authorized persons has the access to secret data or that they
can be made available based on someones request.
In such situation, the question which appears again is whether the courts would
agree to confirm charges in which the prosecution only states that some person
accessed secret data illegally based only on the fact that the data were classified
as secret and that the law does not stipulate the possibility of accessing this data
in a legal way.
So far, we have not been able to answer this question in practice, but, theoretically,
such decree could not only lay the burden of proof on the person charged for this
felony, but it could also question respecting the principles of presumption of innocence, one of the basic principles of criminal law. If this was applied in practice
in such manner, then journalists could easily be charged for this felony and could
easily be in the situation where the defense would be based on proving the way in
which certain data were acquired. In other words, journalists would have to reveal
the source of acquired information in order to defend themselves, contrary to the
internationally accepted standards related to the protection of journalistic sources.
B-Hs criminal law prescribes that the felony for illegal acquiring of secret data is
also the one with an aim to be used without authorization. This decree is broadly defined and leads to the conclusion that there will be a felony even if secret
data are not conveyed to anyone, meaning that one person can be prosecuted
merely because he/she owns secret data although international standards do
not allow the punishment for owning such data.11
7
Beside this, according to international standards, even persons without authorization to access the classified information cannot be sanctioned for disclosing
such data, unless public authorities prove that:
1) the information is classified according to domestic law and internationally
accepted principles; 2) disclosing violated narrowly defined law which criminalizes revealing clearly defined and limited categories of information; 3) disclosing
data caused precisely determined and significant damage to national security
which preponderates over the public interest of receiving the information; and
4) the person knows or could reasonably know that such damage will be caused
by disclosing classified data.
11
Supra note 1.
241
ACQUIRING SECRET DATA ILLEGALLY
RESTRICTIVE CRIMINAL CODES

So far, the analysis has shown that the abovementioned guarantees are not ensured by criminal laws. Criminal laws refer only to secret data at the level of B-H
or the secrets of FB-H, RS, or BD, while the category or type of classified information are not defined or limited. As a result, the same punishment is prescribed
for any classified information without regard to the type and level of secrecy of
this information.
In addition, the analyzed decrees sanction disclosing secret data secret even if this
did not cause any significant damage which can be precisely identified, because
none of the given decrees of criminal laws sets this as a condition for this to be
treated as a felony. The only exception is the so called permissive norm contained
in the criminal law of B-H, FB-H, and BD which will be discussed later on.
Incriminating acts at the levels of B-H, FB-H and BD not only include stating,
conveying, or making secret data available, but also the mediation in these acts
which widens the circle of people who can be criminally liable for this felony.
The approach of RSs criminal law to regulating felonies for disclosing a secret is
slightly different, hence, in its first paragraph, it prescribes criminal liability for
this felony for any person when secret data were entrusted to him or obtained
by him in any way , and when this person renders them to unauthorized person. No matter who commits this felony, the punishment would be imprisonment between one and ten years.
The essential difference between RS and other criminal laws is that the illegality of
acquiring the data is not required, thus there is a felony no matter in which way this
person acquired secret data. This situation is more problematic and restrictive than
the one at the levels of B-H, FB-H and BD and it leaves a lot of space for the prosecution of this felony. On the other hand, this decree of RSs criminal law does not include mediation in conveying secret data as criminal act. Instead, it includes only unauthorized conveying of, rendering, or making secret data or documents available.
The restrictiveness of such solution in RSs criminal law is also supported by the
fact that, unlike the other three laws, it does not contain the so-called permissive norm, which, under particular circumstances excludes criminal liability for
disclosing a secret. Namely, the criminal laws of B-H, FB-H and BD prescribe that
there is no felony for disclosing secret data if someone publishes or mediates in
publishing secret data. This is not the case of the constitutional systems of B-H,
FB-H or the Statute of BD, that aim to make public the facts harming constitutional ystem or international agreement if disclosing does not cause harmful
consequences for B-H,for the security of FB-H or the security of Brko District.
This regulation excludes the illegality of act only if disclosing did not cause any
damage. B-Hs criminal law uses the phrase serious harmful consequences for
242
Such phrase, although it seems useful for possible defendants, leaves space for
a very wide interpretation. This regulation can also be interpreted as a limitation for prosecution when passing charges if it determines that secret data were
disclosed with the goal of revealing unconstitutional acts without any damage
to B-H or its territories. However, if the prosecution brings charges and if a court
confirms these charges, then the defendant would have to prove that the goal
was to reveal unconstitutional acts and that there were no harmful consequences in the sense of this regulation.
As it was said before, RSs criminal law does not contain such regulation. According to this law, it would not be possible at all for defense to be based on public
interest of revealing unconstitutional acts.
RIGHT TO ACCESS PUBLIC INFORMATION AND STATE SECRETS

Criminal laws at all levels and the Law on Protection of Secret Data define secret
data and a secret. However, these definitions are very wide and, contrary to
the principles from Johannesburg,12 they are very restrictive in relation with the
right of receiving and providing information and freedom of expression.
8
Namely, criminal laws and the Law on Protection of Secret Data define secret data
and/or a secret in the way that mainly limits, or better, disables the access to information contrary to the decrees of the Freedom of Access to Information Act at
the levels of B-H, FB-H, and RS.13 In fact, the laws on free access to information
clearly prescribe very narrowly defined exceptions regarding the right and freedom of everyone to get information from public authorities. Moreover, these laws
prescribe that public organs in charge will make the required information public
even if it fits within the exceptions, that is, when publishing the data classified as a
9
12
Supra note 1.
Freedom of Access to Information Act in B-H (Sarajevo, October 2000), Official Gazette of
B-H No. 28/00, entered into force 17 November 2000; Freedom of Access to Information
Act in FB-H (Sarajevo, July 2001), Official Gazette of FB-H No. 32/01, entered into force 24
July 2001, and Freedom of Access to Information Act in RS (Banjaluka, May 2001),Official
Gazette of RS No. 20/01, entered into force 18 May 2001.
13
243
B-H, which is very wide and leaves space for different interpretations. Namely,
such norms generally speak about consequences for B-H and not about consequences related to the security of its territories, as it is the case at the levels of FB-H
and BD. Although this is an important regulation acknowledging and confirming
that legitimate general interest of familiarizing with illegal acts preponderates
over the interest of keeping the data secret no matter how they are classified, the
freedom of disclosing such data is limited by the quite undefined phrase serious
harmful consequences for B-H, that is, for the security of FB-H or BD.
secret is justified by public interest, taking into account every benefit and damage which can be the result of making the information public.
However, Article 8 of the Law on Protection of Secret Data prescribes that certain
data is considered a secret if their disclosure to an unauthorized person, media,
organization, institution, authority or other state and/or authority of other state
could pose a threat to the integrity of Bosnia and Herzegovina, in particular in
the following areas:
a) public security,
b) defense,
c) foreign affairs and interests,
d) intelligence and security interests of Bosnia and Herzegovina,
e) communication and other systems important for state interests, judiciary,
projects and plans significant for defense and intelligence-security activities,
f ) scientific, research, technological, economic and financial operations signifi
cant for the safe functioning of B-H institutions and/or security structures at all
levels of the state organization.
This definition is very wide and does not allow any exceptions prescribed by
laws on free access to information. Hence, public authorities in relation to secret
data do not apply the test of public interest. It can even be concluded that,
according to the Law on Protection of Secret Data, public authorities are not obligated to respond to requests related to classified information.
Also, if public authorities reject the request for providing classified information,
this Law does not stipulate the right for court review of the decision of rejection,
although international standards require this explicitly14, as prescribed by the
laws on free access to information. Instead, the Law on Protection of Secret Data
limits the access to classified information only to authorities and officials who
have the permission for such access (the circle of these persons depends on the
type of classified information) after they pass security check. On the other hand,
criminal laws enable the prosecuting and punishing not only of an official person, but of everyone who conveys classified information with a very narrowly
defined exception (disclosing unconstitutional act if it does not harm B-H or the
security of FB-H and BD) which is not even found in the criminal laws of RS.
10
Furthermore, the definition of term secret data in Article 8 of the Law on Protection of Secret Data shows that secret data do not have to be important for
national security, as they can also be other information with great importance to
14
Supra note 1
244
In spite of prescribing the importance for public interests and the importance of the
safe functioning of B-H institutions and/or security structures at all levels of the state
organization,
such a wide definition contradicts the laws on free access to information and leaves space for a full prohibition of access to a wide range of information
of a great public interest without applying the test of public interest prescribed by
the laws on free access to information. At the same time, such definitions in criminal
laws enable prosecuting a great number of people, both authorities and officials, and
everyone else-including journalists and NGO activists-on the basis of conveying or disclosing such information to the public. This is a worrisome issue because there is no
court review of rejection to provide classified information, hence the decision mainly
belongs to the persons legally authorized to classify some information as a secret.
Also, there are no regulations referring to the fact that in certain periods of time it
will be reconsidered whether it is justified for information to be classified in some
of the ways prescribed by the Law on Protection of Secret Data, nor are there firmly
established deadlines referring to how long such classification will last.
ARE SEVERE PENALTIES IN CRIMINAL CODES CONTRARY TO PUBLIC INTEREST?

As it was showed, at different levels of rule in B-H there are different punishments
for the felony for disclosing a secret. At the level of B-H, the punishment is imprisonment between six months and five years. On the other hand, in Republika
Srpska, the punishment is imprisonment between one and ten years. Such different solutions indicate to different assessments of legislators when it comes to the
severity of this felony. In FB-H and BD there are different punishments for officials
and for other people, thus the punishment for an official person varies between
one and ten years of imprisonment, whereas the punishment for other persons is
not as severe, ranging between six months and five years of imprisonment.
It is extremely important to notice that more severe punishments for official persons (and in RS for other persons, too) are prescribed at lower administrative-territorial levels of government, even though the issues of national (state) security,
international relations, and foreign affairs are exclusively under the authority of
the state of B-H and the state is obligated to conduct activities to protect them.
Therefore, there is the question of whether it is justified to have such strict sanctions for authorized persons at the level of entities and BD.
Beside this, criminal laws and the Law on Protection of Secret Data do not
245
the public. This is very widely defined e) communication and other systems important for state interests, and f ) scientific, research, technological, economic
and financial operations significant for the safe functioning of B-H institutions
and/or security structures at all levels of the state organization.
acknowledge the duty of public officials to disclose information both internally

and to the organ in charge of the protection of secret data if there is an illegal
act. According to international standards, such information refers to a grave law
violation, including the violation of human rights, misuse of official position and
a great danger for health, security, or environment in general.15 The given laws
do not prescribe the abovementioned exceptions, so prosecuting and punishing authorized persons who disclosed classified information referring to such
issues would be contrary to public interest, especially having in mind the severity of punishments at the levels of FB-H, RS, and BD. Article 9 of the Law on
Protection of Secret Data prescribes that what cannot be treated as a secret are
the data which are classified as a secret with a goal to hide felony, violation or
misuse of authorities, with a goal to hide any illegality or to hide administrative
error, but it does not diminish the deficiencies if the criminal laws.
11
The punishment prescribed for unauthorized persons in the sense of criminal

laws is between six months and five years in all laws except the one of Republika
Srpska, where there is no difference between acts committed by authorized persons or other people. Having in mind the fact that the Law on Protection of Secret
Data contains regulations contrary to the laws on free access to information,
it can hardly be said that these punishments are proportional to public interest. Namely, along with all other legal limitations which have been considered
already, severe punishments of imprisonment for citizens who convey classified
information are in fact threats which can hardly, if at all, be justified by public
interest in line with international standards.
LEGISLATIVE CONSEQUENCES FOR WORK IN JOURNALISM AND FREEDOM OF

EXPRESSION
Enabling the prosecution of every person on the basis of conveying secret information without adequate limitations of interference into the right to free access
to information and freedom of expression can certainly cause the prosecution
of journalists as well.
As it was said before, at the levels of B-H, FB-H, and BD there is a regulation on
the basis of which prosecution can be avoided, but this regulation leaves space
for various interpretations and can lead to passing the burden of proof to the
defendant. In addition, in relation with these persons, criminal laws prescribe
criminal liability for illegal acquiring of secret data (except in the criminal law of
RS) which means that the defendant would have to prove that he or she did not
acquire these data illegally.
In the case of the prosecution of journalists, this would mean that, in order to
15
Supra note 1
246
On the other hand, according to the Law on Protection of Secret Data, journalists, or
citizens in general do not even have the possibility or right to ask public authorities
to disclose classified information as this law prescribes the access to such information exclusively for public officials. At the same time, what is not prescribed is the
court review of public authorities rejecting to provide such information in accordance with the test of public interest, which practically derogates the right provided
by the laws on free access to information. This test ought to be adequately included
into the Law on Protection of Secret Data in a way that is accordant with to the laws
on free access to information.16
12
E.g. In Slovenia, according to the Law on Information of Public Interest, the test of
public interest is applied in relation to the information classified below the level of
secret (Article 6). However, in United Kingdom, the very classification of information
does not prevent public authorities to disclose such information according to the Freedom of Access to Information Act.
16
247
defend themselves, journalists would be in the situation of revealing the sources

of information, putting investigative reporting in jeopardy and diminishing its
possibilities as well as bringing into question international standards requiring
the protection of journalistic sources. Also, severe sanctions prescribed for the
persons who commit the felony by disclosing secret data or a secret, along with
all gaps in criminal law and the Law on Protection of Secret Data mentioned, can
surely diminish the scope of investigative reporting and access to information
important to the public, hence the public trust into the government would
significantly decrease.
Chapter 9
REGULATION OF ELECTRONIC MEDIA
249
250
Helena Mandi
The regulation of electronic media in line with European standards in Bosnia

and Herzegovina begins with the Independent Media Committee (IMC) founded by the High Representative in June, 1998.1 In line with the principles of objectivity, transparency, non-discrimination and proportionality, IMC was in charge
of establishing a regulatory regime for electronic media in B-H. This primarily
entailed issuing licenses to all RTV stations and other media as needed, managing and awarding frequency spectrum for broadcasting, passing relevant codes
binding for all RTV stations and other media, and determining the level of compensation for license.
13
According to this decision, the General Director and the Council are the top
management of the IMC and are chosen by the Office of High Representative.
Beside this, the Decision stipulated the forming of the Implementation Board
that would decide on severe violations of the Code or of license conditions.
However, in cases that require immediate reaction, such decisions can be made
by the General Director.
LICENSES ON THE PRINCIPLE OF COMPETITION

The decision also stipulated the authority of the IMC over managing and awarding frequency spectrum for broadcasting until the Law on Telecommunications
at the level of Bosnia and Herzegovina was passed. This established moratorium
of awarding broadcasting frequencies until IMC started to perform this activity.
At the time of IMCs establishment there were almost 300 different RTV stations
in B-H that operated either with licenses issued at different levels, or often even
without any licenses. The IMC started to issue temporary licenses for broadcasting which in fact meant only the registration of the existing RTV. During this
process, the database of all RTV stations was created and all of them received
licenses for broadcasting on their frequencies (changes of technical parameters
occurred only in the cases when serious technical disturbance occurred).
The management of the Independent Media Committee consisted at first of foreigners appointed by the Office of the High Representative. However, from the
very beginning, the committees goal was to have a management consisting of
local experts and to form a strong institution at a state level. In November 1999,
http://www.ohr.int/decisions/mediadec/default.asp?content_id=95 (accessed on 24
March 2012).
1
251
REGULATION OF BROADCASTING IN B-H
R E GU L AT IO N OF BROAD C ASTIN G IN B - H
a B-H citizen was appointed to the position of the Chief of Legal Department
and the process of appointing B-H citizens continued. The first local General Director was appointed in October 2003 while three Council members held their
positions until the first complete local Council was appointed in April 2005.
During 2000, the IMC began the procedure of issuing long-term broadcasting
licenses. Within this process, RTV stations had to fulfill the minimum of program,
financial and technical criteria in order to get a long-term broadcasting license.
After this procedure ended, out of 258 RTV participating stations, only 183 qualified for the license. These included 42 TV stations (16 public and 26 private) and
141 radio stations (62 public and 79 private).
This procedure was based on the principle of competition, which enabled issuing licenses in order to use frequency spectrum in the most efficient way and
to provide various and quality programs at both local and regional level. Moreover, in different international forums, this procedure was said to be successful,
transparent, non-discriminatory and open, introducing order among electronic
media due to very clear rules and especially due to the fact that the process was
conducted in an efficient and transparent manner.
FORMING THE REGULATORY AGENCY

On March 2, 2001, the Decision of High Representative2 joined the duties of the
Independent Media Committee with the duties of Regulatory Agency for Telecommunications (TRA), thus forming one of the first convergent regulators in
Europe.
14
The reasons for making such decision were:

the need to speed up the development of regulatory mechanisms at a state

level;
avoiding double or conflicting regulatory authorities at all level of government in B-H;
the key role of telecommunications in economic development of any country;
the assumption that opening the market of telecommunications towards

the competition brings benefits to both consumers and business sector;
the fact that the trend in communications industry towards the convergence of technology and the way of transmission requires clear and
http://www.ohr.int/decisions/mediadec/default.asp?content_id=75 (accessed on 24
March 2012).
2
252
the opinion that the unique regulator will enable a quick and efficient reaction to economic and business conditions.
Therefore, the decision set the Communications Regulatory Agency as a clear

authority of the state of Bosnia and Herzegovina in the field of communications.
The Agency is managed by the executive director and its structure includes at
least two sectors led by local experts: one for broadcasting and one for telecommunications. The decision also stipulated the involvement of international
consultants.
The decision especially emphasized the independence of the Agency while retaining authority over conducting rules and decisions.
The decision stipulated that the Agency would be financed from licensing fees,
from the budget received from joined institutions of B-H and from donations.
However, the decision also stipulated that the budget of the Agency as a statelevel body represented a part of the budget of institutions of B-H and that the
budget of the Agency directly referred to sector policies of the Council of Ministers. In addition, after the Agencys Council approved the budger, the executive
director has to submit the budget for the approval of the Council of Ministers
since the state service for revision should control the Agencys finances.
Such solution, intended to strengthen the institution of the state of Bosnia and
Herzegovina, later on negatively impacted the work and independence of the
Agency. The decision ensured the continuity of all rules and procedures before
the IMC and CRA at the moment when the two institutions converged. Also, that
in case there was no compliance, this decision would have priority over all laws,
rules and decisions at all levels of government in B-H.
On 21 October 2002, the High Representative made a decision that regulated
different issues of transitional nature that resulted of previous decisions of the
High Representative. At the same time, the Communication Law of Bosnia and
Herzegovina was passed.3
15
The reasons for making such decisions are given in the preamble and cover various issues. These are:
Observing that the Communication Law of Bosnia and Herzegovina, which is a prerequisite for foreign investment and a necessary element for a fully functioning and
empowered regulator, has yet to be adopted;
Recalling that the implementation of this Law and its objectives require a politically independent Communications Regulatory Agency that relies on the exceptional expertise
http://www.ohr.int/decisions/econdec/default.asp?content_id=28251 (accessed on
24 March 2012).
3
253
comprehensive regulatory approach;
and competence of the members of the Council of the Agency and the General Director,
it is therefore necessary to ensure that the members of the Council of the Agency and the
General Director are exclusively appointed on considerations based on their integrity,
knowledge and professional merit.
These points are significant when the actual independence of the Agency is observed in relation to the one stipulated by the Communication Law.
WHAT THE COMMUNICATION LAW PRESCRIBES

On October 21, 2001, the High Representative passed the Communication Law
of Bosnia and Herzegovina.4 Later on, the very same form of the Law was adopted by the B-H Parliament5, and since then there have been only some slight
changes.6
16
17
18
Formally, the Communication Law is a very strong basis for the independence of
the Agency.
In chapter IX, Article 36, the Agency is defined as an independent and non-profit
agency that regulates the communications sector and that carries out its duties in accordance with goals and regulatory principles in line with sector policies. These duties are carried out in accordance with the principles of objectivity,
transparency and non-discrimination.
Article 3 makes a distinction between the Council of Ministers duties and the
Agencys. The Council of Ministers duties include producing and adopting policies in line with existing laws and determining the presentation of Bosnia and
Herzegovina on international forums in the field of communications. On the
other hand, the Agency has authority over the regulation of broadcasting and
public telecommunications networks and services. These services include issuing licenses, establishing prices, interconnectivity and defining the main conditions for ensuring joined and international means of communication, planning,
coordinating, ensuring the purpose and awarding the radio-frequency spectrum.
Additional goals of both bodies are defined by the same article, paragraph 4
which states that the Council of Ministers and the Agency, in line with individual duties defined by this Law, take all reasonable measures for reaching
the following goals:
4
Official Gazette of B-H 21/02.
entered into force 21 October 2003.
5
Official Gazette of B-H 75/06 and 32/10.
254
in terms of choice, price and quality;

b)That there is no distortion or restriction of competition in the communications
sector according to the Council of Ministers sector policies;
c)That efficient investment in infrastructure is encouraged and innovation pro
moted;
d)That copyright and other intellectual property as well as personal data and
privacy is protected;
e)That efficient use and effective management of radio frequencies and num
bering resources are ensured in accordance with the radio regulations and
other recommendations of the International Telecommunication Union, and
with other international agreements entered into by Bosnia and Herzegovina.
Article 4 of the Law gives regulatory principles of broadcasting and telecommunications.
Regulatory principles of broadcasting:

The protection of freedom of expression and diversity of opinion;
The development of professional and viable commercial and public broadcasters;
That broadcasters shall be separate from political control and manipulation;
That licenses shall be awarded on the basis of a process by which appropriate professional standards of program content, technical operation and
financing are ensured;
That broadcast advertising shall be regulated so as to be consistent with

best European practice.
Regulatory principles of telecommunications:

The protection of interest of users;
That all users shall have access to telecommunications services on a transparent, objective and non-discriminatory basis;
That the quality levels for the provision of telecommunications services and
telecommunications equipment shall be compatible with standards generally adopted in the European Union;
That tariffs charged for telecommunications services shall be transparent

and non-discriminatory;
255
a)The promotion of fair competition in order that users derive maximum benefit
That open entry into the provision of telecommunications services will be

encouraged according to the Council of Ministers sector policies.
As such, regulatory principles imply the independence of the Agency because,

based on the way they are defined by the Law, they could not be fulfilled in case
the Agency falls under any type of control.
Article 37 of the Law gives the duties of the Agency in the field of communications.
Agency duties:

To promulgate rules on broadcasting and telecommunications;
To license broadcasters and telecommunications operators;
To plan, manage, allocate and assign frequency spectrum and monitor the
use of it;
To require the disclosure of such information as is necessary for the due

performance of its regulatory obligations;
To apply technical and quality standards;
To establish and maintain a technical license fee system;
Other duties in line with the Communication Law or Sector Policy.
According to the Law, the duties of the Agency include: planning, managing,
the purpose and awarding the frequency spectrum, issuing licenses in broadcasting field and following the respect of license conditions and other rules
and regulations passed by the Agency. The process of licensing is entirely nondiscriminatory and transparent and it is conducted according to the principle
of competition based on precise criteria and the best technical, program and
financial results. Each electronic media and media service provider has to have
the license of the Agency for the use of the spectrum; broadcasting without an
adequate license is illegal. The license for broadcasting includes the obligation
of respecting the Agencys rules and regulations that protect the independence
and the right of the media to freedom of expression and establish certain standards of broadcasting which the media have to fulfill.
The Communication Law stipulates a mechanisms of protection of the Agency
both through explicit provisions prescribing that officials at all levels of government cannot interfere in decision making process (Article 36 (3) of the Law states
that The Council of Ministers, ministers or any other person cannot interfere in decision making process of the Agency in any way in individual cases) and through
provisions regulating the process of election of General Director and the Council
of the Agency.
256
The Council leads the Agency when it comes to strategic issues of applying laws
and it consults with General Director from whom it receives reports. The Council
of the Agency adopts the code of work and rules for broadcasting and telecommunications. Beside this, the function of Council of the Agency is to serve as an
appellate body for decisions made by General Director. The members choose
the president and vice-president among themselves. The Council of the Agency meets at least four times a year. The General Director submits reports to the
Council with regard to strategic issues and attends all meetings of the Council
without a right to vote.
With regard to the election of the members of the Council, the Law describes
a procedure that ensures the election without any political influence. Namely,
according to the Law, only the Council of the Agency selects new members and
determines a list of candidates that consists of at least double the numbers of
members chosen at that time. This list is then submitted to the Council of Ministers that chooses candidates from an extended list and then submits the names
of the select candidates to the B-H Parliament that will appoint them to their
new positions. The Parliament accepts or rejects proposed candidates within 30
days, and in the case of rejection, the Council of Ministers has to offer an alternative candidate from the list put together by the Council of the Agency.
The fact that the Council of Ministers suggests the list of candidates for a new
make-up of this body often causes confusion and makes the credibility of such
procedure rather questionable. However, it is considered that the Law solves any
confusion that may occur in a satisfactory manner. It has to be emphasized that
the Council determines a list which consists of at least two candidates per each
vacancy. There are no restrictions stating that the Council should not create a list
of more candidates. Furthermore, the fact that the Council cannot propose the
current members does not leave any space for misconduct namely, beside current members, the Council has to submit alternative members as well, and the
mandate of Council members can be repeated only once, an usual duration for a
mandate so that same persons cannot be the members of the Council all the time.
In addition, it is necessary to emphasize that Council members are appointed
based on their personal qualifications as individuals with legal, economic, technical or other relevant experience and who are experts in the field of telecommunications and broadcasting.
The Law also prescribes that officials on legislative or executive positions at all
levels of the government or members of bodies of political parties cannot be candidates for membership in the Council of the Agency. Moreover, the members
of the Council have to report every interest they have in telecommunications or
257
WHAT THE AGENCY IS IN CHARGE OF AND WHAT IT CONSISTS OF
broadcasters operators and they are exempted in cases of a conflict of interest.

This procedure could be additionally advanced if there was a provision introduced
to define in a more detailed way the procedure of announcing the call for new
Council members and a provision which would make it binding for the Parliament
to give a detailed explanation of why a candidate was rejected. It is also possible to
obligate the Council of the Agency to rank candidates; another provision can determine deadlines for the Council of Ministers to submit a new list of candidates,
as well as a final deadline for the entire procedure and to make the first-ranked
candidates take over the duty automatically in case this deadline is not respected.
However, it is considered that the Law still formally ensures that members of
the Council of the Agency are chosen in a democratic way, without the interference of political interests. In practice, however, we are facing the situation in
which the mandate of the Council expired on April 25, 2009. After the legally
prescribed procedure was conducted, the Council of the Agency submitted the
list to the Council of Ministers (due to the lack of provisions on the procedure of
announcing the call, the provisions regulating this issue in the case of electing
the General Director were applied); the Council of Ministers narrowed down the
list and forwarded it to the Parliament. Without any explanation, the Parliament
returned the list of candidates to the Council of Ministers with a request of a new
list. At the time when this text was written (May 2011), new members were not
yet appointed nor were there signs of when this could happen.
THE GENERAL DIRECTOR

The General Director is the head of the Agency and this person is responsible for
all administrative activities of the Agency, which include the application of the
Communication Law and other relevant laws. Also, this person is responsible for
all staff issues of the Agency, as well as for establishing the rules about internal
procedures.
There is a detailed description of the procedure of appointing the General Director in Article 40 of the Communication Law.
The nomination of the General Director shall be made following a public competition that has to be announced in the Official Gazette and allow at least four
weeks for the submission of applications. Applicants shall have relevant experience in the fields of telecommunications and/or broadcasting and proven management skills. Officials in legislative or executive functions at any level of Government, or members of political party organs shall not be nominated for the
position of General Director. The General Director shall not have any financial
relation with a telecommunications operator or a broadcaster.
258
The Law provides a very clear definition for the position of General Director, as
well as guidelines for the obligation of the Council of Ministers to appoint the
General Director suggested by the Council of the Agency.
If it was an initial intention, the legislator would state for example, that the Council of the Agency forwards to the Council of Ministers the list of candidates for
General Director or it would stipulate the conditions under which the Council of
Ministers could return the proposal. However, as the Law states that the Council
proposes the General Director and not a candidate for General Director who is
then approved by the Council of Ministers within a certain period of time, it is clear
that in such circumstances there are not options for different interpretations.
However, problems occurred in the application of this Article. After following
the legally prescribed procedure, in 2007, the Council of the Agency submitted
to the Council of Ministers a proposal for the General Director. Instead of the approval of the nomination, the Council of Ministers repudiated the proposal and
made ordered the Council of the Agency to announce a new call for the election
of General Director of Communications Regulatory Agency...
Therefore, even though the Council of the Agency conducted the legally prescribed
procedure and submitted the unanimously adopted proposal for the approval of
appointing the selected candidate for the position of General Director to the Council of Ministers on time, the Council of Ministers refused to approve this election
without any legal basis. Namely, the Law explicitly prescribes that the Council of the
Agency is entirely in charge of the election and appointing while the Council of Ministers only approves the proposal. In addition, the Law does not enable the Council
of Ministers to establish or conduct the procedure of appointing the General Director of the Agency on its own, nor to have any other influence on the procedure of
election and appointing the General Director. The Council of the Agency cannot be
influenced by the Council of Ministers when making individual decisions within its
legal authorization (Article 36, paragraph 3 of the Communication Law). This is also
prescribed by the provisions of the Communication Law which guide the appointment of the Council of the Agency and clearly prescribes limits on the influence
that the Council of Ministers and the Parliament can have on the final nomination of
Council members (more on this in the previous chapter).
(IN)COMPLETE FINANCIAL INDEPENDENCE
Financial issues of the Agency are regulated by Article 40 of the Communication
Law. The budget of the Agency shall relate directly to the Council of Ministers
sector policies. The General Director shall submit a budget for each fiscal year,
259
After the selection, the Council of the Agency proposes the General Director,
who needs to be approved by the Council of Ministers within thirty days after
submission of the nomination.
previously adopted by the Council of the Agency, to the Council of Ministers for
approval. Until the budget is approved or altered by the Council of Ministers, the
Agency shall operate the budget adopted by the Council of the Agency.
The funding of the Agency comes from recurrent technical license fees for the
regulation and supervision of the telecommunications operators and broadcasters and from grants or donations received by the Agency insofar as they are
in conformity with general principles of law. When grants or donations are given
for specific tasks or projects in the public interest, they shall be accounted for
separately to the approved budget and not be included therein.
Funds received by the Agency shall be used in accordance with the Agencys
budget as directed by the General Director.The Law also states that fines collected by the Agency in the performance of its right to apply enforcement measures, and levies invoiced as directed by the Council of Ministers shall be remitted to the Council of Ministers for inclusion in the budget of the institutions of
Bosnia and Herzegovina.
The use of funds by the Agency shall be subject to review by the Supreme Audit
Institution and in addition audited by an independent auditor every year.The
Agency shall prepare an annual report of its finances and activities, and shall
submit it to the Council of Ministers. The Council of Ministers shall consider the
Agencys annual report and publish it not later than four (4) months after the
end of each financial year.
The Council of Ministers can lower the proposed budget of the Agency to a certain percent which somewhat limits a direct impact on the budgetary policy of
the Agency. However, the very fact that the Agency has the status of a budgetary user7, makes it succumb to numerous laws related to budgetary users Law
on Salaries, Law on Ministries and Other Bodies of Administration, etc. which puts
the Agency primarily under financial control.
1
Finally, the independence of the Agency is particularly jeopardized after there

were amendments and additions to the Law on Ministries and Other Bodies of
Administration8, which was adopted by both houses of the Parliament of B-H
on 30 December 2009. The Agency was included in stand-alone administration
bodies. The concept of stand-alone in the context of this Law should not be
mixed with the concept of independence. Namely, stand-alone in this context
refers only to the fact that the Agency is not a part of a ministry or any other
body while the Law makes it succumb to numerous influences of executive rule
which additionally endangers its independence having in mind that this is an
independent regulator the activities of which are regulated by special legal acts.
2
Law on Funding the Institutions of Bosnia and Herzegovina (Sarajevo 2004), Official
Gazette of BiH 61/04 and 49/09.
7
Official Gazette of BiH 103/09.
260
The Agency adopted the rules in the field of electronic media by following European principles and standards. On one hand, general program rules prescribe
program standards; such rules are found in the Code on Broadcasting RadioTelevision Program and the Code on Advertising and Sponsorship in Programs of
RTV Stations. On the other hand, rules in the field of broadcasting establish the
system of licensing and specific rules for cable distribution and audiovisual media services.
One of the main regulatory documents defining the rules and standards that
deal with program content is the Code on Broadcasting RTV Programs. The preamble of this Code, adopted for the first time on July 30, 1998, covers the issues
such as encouraging, representing and promoting ethnic, national or religious
intolerance and violence. Also, the Codes stated purpose is to ensure the right
to freedom of expression stipulated by the European Convention of Human
Rights and in the Constitution of Bosnia and Herzegovina, while respecting the
general standards of decency, non-discrimination, fairness, and accuracy. The
Code came into force on August 1, 1998, and is considered to be a constitution
for electronic media in Bosnia and Herzegovina which should be respected by
all license carriers in the field of broadcasting.
Beside the Code on Broadcasting RTV Programs in the sense of operational practice, the Code on Advertising and Sponsorship in the Programs of RTV Stations
also regulates RTV program. This Code, regulating the principles of advertising
and sponsorship in the programs of RTV stations, was adopted for the first time
on March 9, 2000.
In May 2005, the President of Bosnia and Herzegovina ratified the Convention
of the Council of Europe on the trans-frontier television; after the ratification,
domestic regulations were supposed to be aligned with the Conventions provisions. Every member state and every signatory of these documents needed to
guarantee that national broadcasters will follow the given provisions. The harmonization of domestic legislative processes and European Union directives is a
binding aspect of European integration.
Even before the official ratification, the Agency started working on the compliance with the Convention. In 2004, the first amendment of the Code on Broadcasting RTV program included provisions related to the limitations regarding
the protection of children and minors from possibly inappropriate contents
broadcasted at inappropriate hours.
The process of complying with the Convention became more intensive after its
ratification; in 2006, the Code on Advertising and Sponsorship in Programs of RTV
Stations was revised in accordance with the provision and decrees on advertising
261
RULES AND CODES OF THE AGENCY
and sponsorship in the Convention on Trans-frontier Television. The amended provisions on advertising and sponsorship referred primarily to how long advertisement
breaks last (15% of daily program at most, and 20 in one hour). Beside this, provisions related to the interruption of programs due to advertising were introduced, as
well as provisions related to the protection of minors and to advertising of alcoholic
beverages. The amended and clarified text of the Code on Advertising and Sponsorship in Programs of RTV Stations entered into effect on October 29, 2007.
The directive of the European Union on television without borders also underwent extensive changes and, in December 2007, it came into force in a different
form and under the name of Directive on audiovisual media services. Considering the obligations of Bosnia and Herzegovina in the processes of stabilization and accession that refer to the compliance of domestic regulations with
European legal and regulatory documents, the process of amending the Code
on Broadcasting RTV Programs began.
The amended and clarified text of the Code included topics such as the protection of minors, the inclusion of programming dedicated to minors, and reporting
on crimes involving minors. For the first time, this Code paid special attention
to the right to privacy and introduced special provisions referring to drugs and
alcohol, cigarettes, violence and dangerous behavior, sex and nudity on television, warning the audience before certain content is broadcasted, reporting on
court procedures, etc. The new text of the Code on Broadcasting RTV Programs
was adopted by the Council of the Agency on January 31, 2008, and came into
force on March 10, 2008.
In an effort to create a firm legal ground for electronic media, the Agency also adopted numerous other rules in the field of broadcasting. One of the first rules more
precisely defining the procedure of licensing was Rule 04/2000 Process of competition based on the best results for awarding long-term broadcasting licenses,
adopted on September 26, 2000. On June 15, 2009, Rule 42/2009 on licenses for
terrestrial radio-diffusion of RTV programs replaced Rule 04/2000 and established
the procedure and criteria for obtaining licenses for the terrestrial radio-diffusion
of radio or television programs and general and specific conditions of licensing.
The purpose of this Rule is to realize the most important principles in the field of
radio-diffusion: the protection of media pluralism, public interest and ensuring
equal and efficient competition on media market in Bosnia and Herzegovina. The
abovementioned rules established a fair, reasonable, open, non-discriminatory
and transparent way of issuing licenses for terrestrial radio-diffusion.
Having in mind that there is a dual broadcasting system in B-H, dealing with
both public and commercial radio and television stations, the two have different
obligations as well. On November 1, 1999, Rule 1/1999- Definitions and obligations of public radio stations was adopted; the rule defined the obligations of
262
ENCOURAGING SERVICE PROVIDERS COMPETITION

Following the new trends in the regulatory practice of the EU countries, the
Agency introduced a new regime of licensing by issuing licenses for audiovisual
media services and licenses for distribution of radio and TV programs. In order
to regulate the process of issuing licenses and the conditions of these licenses,
on January 31, 2008, the Council of the Agency adopted Rule 33/2008 on the
way of licensing and conditions of licenses for providing audiovisual media
services,9which realizes the most important principles of broadcasting sector
while taking into account the fast digitalization of the media and the process
of convergence as a precondition for introducing digital terrestrial television in
B-H. On September 10, 2008, the Council adopted Rule 36/2008 on the way of
licensing and conditions of licenses for distribution of radio and television programs10; the rules purpose is to ensure access to communicational services on a
transparent, objective and non-discriminatory basis, to protect the interests of
all users of services, and to make the quality level of services closer to the general standards in the European Union.
3
The process of compliance with the European regulatory framework continued

in 2010, and it primarily referred to the new approach to regulating television
services and advertising and sponsorship (audiovisual commercial communication) and the introduction of regulating services on demand. The rules which
were to be changed during 2010 and the adoption of which is expected in 2011
include: Code on Broadcasting RTV Programs, Code on Advertising and Sponsorship, Rule 42/2009 on licenses for terrestrial radio-diffusion of RTV programs,
Rule 36/2008 on the way of licensing and conditions of licenses for distribution
of RTV programs and Rule 41/2009 on public stations11.
5
At the meeting held on November 15, 2011, the Council of the Agency adopted
a new set of regulatory documents which fully replaced the abovementioned
rules and codes. This set included:
http://www.rak.ba/bih/index.php?uid=1269867979 (accessed 26 March 2012).
10
http://www.rak.ba/bih/index.php?uid=1269867979 (accessed 26 March 2012).
11
http://www.rak.ba/bih/aktuelnost.php?uid=1303198557 ( accessed 26 March 2012).

263
public radio and TV stations with regard to meeting certain requirements related to program content, limitations related to the allowed amount of time for
advertising, establishing editorial councils, independence from political structures, etc. The rule was amended several times and, in 2009, the Council of the
Agency adopted the Rule 41/2009 on public RTV stations.
The Code on audiovisual media services and media services of radio, the Code on
commercial communications, Rule 55/2011 on providing audiovisual media services, Rule 56/2011 on licenses for distribution of audiovisual media services and
media services of radio, Rule 57/2011 on public RTV broadcasters and Rule 58/2011
on providing media services of radio. 12
6
The main characteristics of suggested changes are pivotal in the regulation

that, so far, exclusively referred to traditional broadcasting. The new approach in
regulation is the consequence of adapting traditional services of providing content intended for broadcasting in a new audiovisual environment and services
that appeared with the development of new technologies. The reason for this is
the fact that digitalization of information, increased speed of transmitting data,
and the development of new platforms of distribution put aside the principle
according to which media services are identified based on technology of transmission. In line with this, the main goal of the Agency is to use these changes in
order to encourage competition among service providers, to enable a greater
flexibility in financing audiovisual contents, to provide a high level of protection
of consumers and to create equal conditions for all service providers no matter
which technology they use to distribute their services.
Beside big changes in the very structure of regulatory framework and terminology, one of the most important novelties was that for the first time regulatory
framework included media services at ones request which needed to get the
approval of the Agency. In line with the Directive, new rules introduced a twolevel approach of regulation of media services, having in mind that the level of
regulation is not as strict when it comes to the services at ones request, that is,
there are less rules applied to them, and considering the fact that viewers/listeners are to choose the content to watch/listen on their own gives them a greater
extent of control. The Code on commercial communications more thoroughly
regulates the new forms of advertising and introduces the regulation of marketing of a product. Also, it is important to say that in order to protect the minors
more efficiently, the Code on audiovisual media services and media services of
radio prescribes more detailed provisions related to the protection of minors.
Primarily, there is the obligation of categorizing and marking contents based on
the appropriateness to a certain age group as well as the time of broadcasting
certain program contents. The Code thus introduces the categories of marking
program content with 12+, 16+ and 18+.
By adopting the abovementioned documents, the Agency made regulatory
framework fully comply with the Directive on audiovisual media services. There
are two provisions of the Directive left as the Agency was unable to take over
All these documents were published in the Official Gazette of B-H 98/11, and
they are also available on the website of the Agency http://www.rak.ba/bih/index.
php?uid=1324649058.
12
264
PROCEDURES IN CASES OF VIOLATIONS OF THE CODE, RULES OR LICENSE

CONDITIONS
Every private or legal person can make a complaint to the Agency; the complaint
is then officially considered according to established procedures. The Agency
can also start the procedure when it establishes or learns that, considering the
existing factual state, the procedure should protect public interest. In order for
the Agency to be able to take measures when there is a possible violation of
rules and regulations in relation to program content, it is necessary for every
complaint received to contain basic data on date and time of broadcasting the
disputable program.
All complaints are considered in the same manner. The preliminary procedure after the complaint is received includes submitting a request to the station to send
the video of the program and comments on the complaint. Then, the Agency analyzes this program in the context of possible violation of applicable rules and regulations. In the time of the Independent Media Committee, the Implementation
Board made decisions on violations of the Code or conditions of the license and,
in cases requiring quick resolve, the General Director could make the decision. The
General Director now always makes decision of first instance on possible violations of rules and regulations of the Communications Regulatory Agency.
In particularly complex cases (cases important for politics, the first cases on a
new issue that are likely to become frequent, complex cases related to broadcasting standards, etc.), the General Director of the Agency can ask for an expert
opinion from a consulting committee consisting of experts in different fields
(law, journalism, literature, technical science, etc.).
Proportionally to established violations of relevant rules and regulations, the
Communication Law of B-H (Article 46) stipulates certain sanctions, or executive
measures:
a)Oral and written warnings;
b) Inspection of licensed facilities;
c) Concrete demands for action or cessation, to be complied with within a
specified time limit;
265
due to legal limitations hence it incorporated them into the Decision on establishing a body in B-H in charge of the cooperation with regulatory bodies in the
field of electronic media and providing authorization for determining a list of
important events for broadcasting in B-H which is supposed to be adopted by
the Council of Ministers of Bosnia and Herzegovina.
d)Assessment of a financial penalty not to exceed 150,000 KM in case of deliberate

or negligent violation of individual provisions of the Law or of conditions
specified in the license or in the codes of practice and rules of the Agency. The
level of the financial imposition shall be commensurate with the gravity of the
infringement and, where applicable, with the gross financial benefits derived
from the infringement. In case of repeated violations, the financial imposition
may not exceed 300,000 KM. The Agency shall devise a schedule of infractions
and resulting penalties, which shall be adopted by the Council of Ministers.
e) Orders to interrupt broadcasting or the provision of telecommunications
services for a period not exceeding three months;
f )Revocation of a license.
After the decision is made, it is sent to a license carrying radio and/or TV station
and then it is published to the public. The stations can contest these decisions.
The role of the Council of the Agency in this procedure is similar to the role of
the court of appeal. The main principles of the court of appeal are also applied
when the Council carries out its appellative function. When deciding on complaints, the Council of the Agency follows the Law on Managing Procedures. Judicial questioning of a decision can begin if there is a complaint in a managing
dispute before the Court of Bosnia and Herzegovina.
OVERVIEW OF VIOLATIONS OF RELEVANT RULES AND REGULATIONS

1998-2001 Period
In the first three years of its work, the Independent Media Committee (IMC) received
most complaints and there were most punishments based on the violations of rules
and regulations. According to The report on cases of violations of rules of the Agency, June 1998 December 2001,13 in this period, the former Department for Monitoring and Complaints of the IMC, todays Sector for Program Contents, Complaints
and Legal Regulations in Broadcasting officially considered 473 complaints related
to program standards, obligations of respecting copyright, etc.
7
In this period of time, there were 138 decisions in total related to violations, 50 of
which were made by the General Director, and 88 by the Implementation Board.
After this regulation was established, RTV stations had the obligation to respect
rules and regulations of program standards in broadcasting for the first time; it
is not a surprise that the very beginning of the IMC was marked by the most difficult cases of violations of rules and regulations. It is especially emphasized that
this was a post-war time when public communication was generally on a very low
level, when texts and programs were still full of political discrimination, based on
13
www.rak.ba (accessed 26 March 2012).
266
Out of the abovementioned number of decisions on violations made in this period, 52 referred to the established violations of rules and regulations related to
program content (Code on Editing Radio-Television Program- the earlier name
of todays Code on Broadcasting RTV Program),
Table 1: Decisions on complaints related to content of programs (see Annex 1)
Following the history of cases decided by the General Director and the Implementation Board, it is clear that from 1998 until the mid-2000s cases mainly referred to the violations of the Code on Broadcasting RTV Programs, whereas later
most violations referred to copyright violations14 and violations of the Code on
Advertising and Sponsorship. Overall, assessments of the code on broadcasting
in the first three years showed that the provision related to fair and impartial
program editing (Article 1.4 of the Code15) was violated 27 times.
8
The provision related to the obligation of saving program videos (Article 4.1 of
the Code) was not taken seriously by the stations at the very beginning an was
violated in 19 cases.
The most severe violations certainly include those that refer to hate speech. The
former Code on Broadcasting RTV Programs contained a provision (Article 1.1 of the
Authorizations of the Agency which can be found in the Law on Communications do not entail a direct authorization to apply laws in the field of protection of copyright and similar, having in mind that there are special laws that regulate this field in BiH. Regarding the protection
of copyright which is included in the authorizations of the Agency, it is necessary to say that
Article 3, paragraph4, point d of the Law on Communications in BiH prescribes the following:
4.The Council of Ministers and the Agency according to the respective competencies as set out in
this Law shall take all reasonable measures that are aimed at achieving the following objectives:
d)That copyright and other intellectual property as well as personal data and privacy is protected;
In line with their limited legal authorizations in this field, license users are obligated to
respect the copyright which involves only establishes the fact that there is a contract,
according to Article 17, Obligations of respecting copyrights of the Rule 42/2009. This
Rule is referring to licenses for terrestrial radio-diffusion of RTV program and it states: (1)
Users shall respect all duties and obligations towards any third party related to copyrights or
other rights which can be the result of broadcasting protected program, in line with relevant
regulations. (2) License users are obligated to have adequate contracts which provide them
with right to broadcast protected program and such contracts must be submitted to the
Agency on its request. The Agency will treat these contracts as confidential.
14
Article 1.4 of the Code states: Radio
and television outlets shall ensure adequate accuracy, fairness and impartiality in editing all programs, including news programs. They must not broadcast
any program which could, according to anyones judgment, promote interests of a political party
or any other group or an individual, nor must they conduct such activities systematicaly during
one period of time while excluding other political parties, groups or individuals. There should be
a clear distinction between comments and news. When it comes to controversial topics related to
public policy, one opinion or one stance must not prevail. https://www.parlament.ba/press/
default.aspx?id=19274&langTag=bs-BA (accessed 26 March 2012).
15
267
intolerance and stereotypes from war and pre-war years.
Code16) that prohibited broadcasting any content which carried clear and direct
risk of encouraging ethnic or religious hate among the communities in Bosnia and
Herzegovina, or whose content could cause violence and riots, encourage crime
or criminal acts or to cause public damage. The violation of this provision was noted in eighteen cases, out of which five cases also included the violation of provision prohibiting putting down religious beliefs of others (Article 1.3 of the Code17).
10
11
The most specific case in this time referred to Radio Sveti Georgije on May 8,
2001, that, between 20:45 and 22:02, broadcasted an interview related to the
events that followed the setting of the Ferhadija Mosques foundation in Banjaluka. The program was broadcasted again the following day. The interview featured the painter Aleksandar Sopot who commented on these events and used
expressions that could be interpreted as hate speech. In the case of this program, the Agency determined that there was no editorial control whatsoever;
not only did the program speak badly about religious beliefs, but it also caused
a significant risk of public riots, violating Article 1.1 General and 1.3 Religion of
the Code. The station was sanctioned and its license was suspended for 90 days.
The provision that deals with decency and civility in RTV stations programs was
violated 18 times in both individual cases and in cases of multiple violations.
2002-2010 Period
The positive influence of the IMC with regard to regulation in the first three years
was crucial for establishing the independence and professionalism of electronic
media in B-H. There was a significant progress as in the following years of
regulation in B-H the number of cases related to hate speech became lower. This
is confirmed by the data saying that, as opposed to the 1998-2001 period, in 2002
there was only one case of violation of the hate-speech provision, whereas in
2003, there were no such violations. Between 2004 and 2010, there were 13 cases
of violation of hate-speech provisions. The following chart gives an overview
Article 1.1 of the Code states: Program shall be in line with generally accepted standards
of civility while respecting ethnic, cultural and religious differences in Bosnia and Herzegovina. Radio and television outlets shall not broadcast programs the tone and content of
which:
(1) carries clear and direct risk of encouraging ethnic or religious hatred among the communities in Bosnia and Herzegovina or which could, according to anyones judgment, cause
violence, riots and disturbances or which could encourage crime or criminal activities.
(2) carries clear and direct risk of causing public damage: this damage is defined as death,
injury, damage to property or other types of violence or disturbing the usual activities of the
police, medical service or other services maintaining the public order.
16
Article 1.3 of the Code: Religion and religious activities of different religious groups must not
be falsely presented and a great effort must be made in order to provide correct and fair religious
programs. These programs must not disparage religious beliefs of the others.
17
268
Table 2: Cases of violations of the Code 20022010 (see Annex 1)

Observing the history of cases in the sense of the type of violation, it can be said
that 2002 was a pivotal year. Compared to previous years, there was a significant
decrease of violations of hate-speech provisions as well as a fading of programs
that carried a risk of causing ethnic or religious hatred or public damage. From
then on, most violations referred to the provision dealing with decency and civility, adding up to 38 violations between 2002 and 2010.
The number of copyright violations lowered between 2002 and 2010. Compared
to the period between 1998 and 2001 (when there were 21 copyright violations)
there were only 6 such cases in 2002, two cases in 2003, one case in 2004 and
zero in 2005. Between 2006 and 2010 there were four such cases in total.
Since 2004, when the Code on Broadcasting RTV Programs included the provision
related to limitations on the periods of time of broadcasting intended for the
protection of children and minors from a possibly inappropriate content, there
were cases of violations where stations were not responsible regarding the appropriateness of program content to broadcasting time. This is how there were
six cases of violation of this provision in 2004, 2005 and 2006, while the number
of these cases increased in 2007 (eight in total); in 2008 there was only one such
case. In 2009, there were nine cases of violating the principle of broadcasting
referring to the protection of children and minors (Article 12 of the Code), and to
the inappropriate content broadcast at an inappropriate time, whereas in 2010,
there were three such cases.
If the obligation of saving program videos within a prescribed time and in line
with rules and regulations of the Agency is not respected, then the Agency is not
able to examine possible violations of rules and regulations. While there were
numerous violations of this provision in the first three years (19 in total), the
number of these violations decreased in 2002 showing that stations became
aware of the importance of respecting this provision and made efforts to establish a more adequate and more efficient program archiving. This is why, in 2002,
there was only one case like this, in 2003 and 2004 there were six cases, in 2005
there were two cases and between 2006 and 2010 there were only four cases of
this kind.
Beside certain program standards, applying principles of advertising and sponsorship in line with best European practices, contributed to a further profession269
of cases of violations of rules and regulations related to program standards

(Code on Broadcasting RTV Programs and Code on Advertising and Sponsorship
in Programs of RTV Stations) and obligations of respecting copyrights between
2002 and 2010, which was made based on the data in annual reports of the
Agency on violations of rules and regulations given between 2002 and 2010.
alization of electronic media, especially in 2007. As for examples of violations, it

is interesting to mention the cases of non-allowed and deceiving advertising
noted in 2007 after the enforcement of the amended Code on Advertising and
Sponsorship began. Namely, several stations (Alfa TV, BHT 1, NTV Hayat, Alternative television, RTV Mostar, Tuzla television HTV Oscar, C Pink BH, RTRS, RTV FB-H)
broadcasted a commercial for a new brand of cigarettes called Royal.
According to Article 3, General principles of advertising, telemarketing and
sponsorship, advertising, telemarketing and sponsorship, advertisements
should not be deceiving, nor should they harm the interest of consumers.. According to Article 8 of the same principles, Advertising and telemarketing of certain products, advertising and telemarketing of tobacco products is not allowed.
However, the advertising campaign in the media for Royal began in April 2007.
More precisely, this was a commercial which appeared in four different versions
with different messages such as Enjoy for 24 hours, 24 hours with you, Royal,
nothing can replace you, and As if it was a first time for you and me, nothing can
change the way you taste.
The campaign started as a so called teaser, that is, the advertisement did not
clearly state what is actually being advertised at first and all videos had the same
model in it appearing in three videos in an elegant suit taking out a lighter out
of his pocket with an engraved letter R (the same type of this letter appears in
all videos) and all videos at one point showed a rag of smoke. A while after the
campaign started, on May 9, 2007, the media published an announcement stating that Tobacco Factory Sarajevo and fashion line Granoff signed the Contract
of sponsoring a new collection of suits named Royal. Later on it was established
that all four versions of this commercial could be found on a website of Tobacco Factory Sarajevo as a commercial for Royal cigarettes. However, the official
website of Granoff company there was no special collection called Royal, nor
did the photos and videos showing the lines of the fashion company include
photos or videos used when advertising the product called Royal. At the same
time, the announcement of cooperation between two companies in both print
media and billboards in Sarajevo showed a more intensive advertising of cigarettes. Although the content of advertisements on public space is not under the
authority of the Agency, in this specific case, the description of these advertisements was important for establishing the connection between TV advertising
and other types of advertising the product called Royal. The posters showed the
same model with two packs of cigarettes in a dark blue packet with the name
Royal on it, with the logo Enjoy for 24 hours beside it. This was signed by Flavio
De Salvatore, while letters FDS were in bold. The price of 2KM was also printed
on the posters. The print media advertisement showed the same model in bed
(without a suit), holding a piece of paper with letter R on it and pictured in the
corner two open packs of Royal cigarettes.
270
In the first year of enforcement of the changed rules and regulations on advertising and sponsorship, there were 33 violations in total; this number lowered in
2008, as there were four cases of such violation. In 2009, there were 15 and, in
2010, eleven cases of violations of advertising and sponsorship principles.
Some of more serious violations include the case of combined violations of the
Code on Broadcasting RTV Programs and of the Code on Advertising and Sponsorship in Programs of RTV Stations such as the case with TV OBNs reality show Big
Mama House, broadcasted in 2008.
271
LAWS ON PUBLIC RTV SYSTEM AND SERVICES
It was perfectly clear that the entire campaign referred to advertising Royal
cigarettes and that the alleged cooperation between two local companies in
the promotion of this product was a result of a marketing practice called surrogate advertising, that showcases the product for which advertising is usually
prohibited. The Agency concluded that the commercial for Royal in programs,
disregarding the fact that the stations claimed that it was for the fashion line
Royal of Granoff which undoubtedly presents the cigarettes with the same
name, was in fact deceiving for public and harmful to the interest of consumers
in the context of the obligation of media to broadcast legal and fair advertisements in their programs. Also, because there were no contracts with Tobacco
Factory, it actually represents advertising tobacco products clearly forbidden
according to Article 8.

Amer Dihana
There are four laws that regulate public RTV broadcasting in Bosnia and Herzegovina (B-H). These are: the Law on Public Radio-Television System of B-H1 (Law
on System of B-H) and the Law on Public Radio-Television Service of B-H2 (Law on
BHRT) at the level of Bosnia and Herzegovina, as well as two entity laws: the
Law on Public Radio-Television Service of RS3 (Law on RTRS) and the Law on Public Radio-Television Service of FB-H4 (Law on RTVFB-H). The Law on System of B-H
established the Public Radio-Television System in B-H (PRTS B-H) as well as the
relations among its parties:

Radio-Television of B-H (BHRT) as the public RTV service of B-H,
Radio-Television of the Federation of B-H (RTVFB-H) as the public RTV service of the Federation of B-H,
Radio-Television of Republika Srpska (RTRS) as the public RTV service of Republika Srpska,
Corporation of public RTV services (the Corporation).
The Law on System of B-H is the umbrella for other laws and stipulates that the
laws on services should comply with its provisions. Such compliance should be
achieved within 60 days, starting from the day this law is passed.5 This law aims
at reaching balance between the independence of each broadcaster and their
joint activities within the system. The Law on System of B-H ensures independence of public RTV services in all crucial aspects, including editorial independence and institutional autonomy.6 This means that public services independently establish their programs, manage their assets, deal with financial and
employment issues, and represent broadcasters in legal proceedings. On the
other hand, public RTV broadcasters are obligated to register the Corporation as
a joint managing structure at the state level.
Law on Public Radio-Television System of B-H (Sarajevo, October 2005), Official Gazette
of B-H 78/05, entered into force 8 November 2005.
1
Law on Public Radio-Television Service of B-H (Sarajevo, December 2005), Official Gazette
of B-H 92/05, entered into force 28 December 2005.
2
Law on Public Radio-Television Service of RS (Banja Luka, May 2006), Official Gazette of
RS 49/06, entered into force 11 May 2006.
3
Law on Public Radio-Television Service of FBiH (Sarajevo, July 2008), Official Gazette of
FB-H 48/08 entered into force 6 August 2008.
4
Law on Public Radio-Television System of B-H (Sarajevo, October 2005), Official Gazette
of B-H 78/05, entered into force 8 November 2005, Article 3 and 44.
5
Ibid., Article 4.
272
Basically, the entire system of public broadcasting is defined by four characteristics: autonomy, coordination, similarity, and codependence. Therefore, there
should be three broadcasters with a significant level of autonomy in all key aspects (program policy, finances, legal representation, etc.). The broadcasters also
share a great number of resources through the Corporation (resources for gathering information for news programs, archives, etc.); they have similar internal
structure (legal regulatory, human resources, business policies, etc.); and they are
codependent when dealing with numerous development issues (new technologies, digitalization, getting foreign programs, selling advertisements, etc.).
BASIC PRINCIPLES OF THE LAWS

Laws on public broadcasting prescribe tasks for public broadcasters and define the
relations within the Public Broadcasting System and the way of managing the System and individual broadcasters. In addition, these laws regulate the relation with the
state and regulatory bodies and establish the ways of funding and the obligations of
citizens related to the RTV fee. Finally, the laws determine program and advertising
principles and limitations and they contain other provisions the goal of which is to
establish the entire System of public RTV broadcasting in B-H as soon as possible.
a) Task
The main task of public broadcasters is providing various and truthful information about a wide sector of social events, as well as ensuring the presence of a
variety of programs (educational, cultural, sports, etc.). The broadcasters should
also provide correct and impartial information to citizens and make sure that
news programs are primetime programs. The broadcasters should ensure the
7
Ibid., Article 6.
273
The idea was that the Corporation should conduct a number of activities on behalf
of all three public RTV services. Most activities referred to coordination, or more precisely to the development and coordination of legal regulation, the promotion and
coordination of technical development and introducing new technologies, joint usage of technical, financial and staff potentials, coordination of resources for gathering the content for news programs, joint use of archives, coordination of business
and development plans as well as the management of human resources. On the
other hand, the independence of the Corporation is visible in selling advertisements
and other marketing products, creating strategies for multimedia services of public
RTV broadcasters, establishing internal and external communication including international connections, broadcasting foreign programs, ordering public polls and
examining media market, as well as providing transmission for public broadcasters.7
availability of high quality programs for the public and encourage democratic
processes in the country.8
b) Management
Managing bodies of the three public broadcasters consist of a managing
board and a board of directors. While managing boards protect and represent
the public interest and supervise the business and dispose of assets of public
broadcasters,9 the boards of directors manage public broadcasters directly. The
boards of directors consist of the Directors General of broadcasters and managers of sectors10. At the Public RTV System level as one of the joint structures of
three broadcasters there is the Board of Public RTV System11, which is also the
Managing Board of the Corporation12. The Corporation also includes the Board
of Directors, which, just as in the case of public broadcasters, consists of the
General Director and the Director of Sector.13
Managing boards of broadcasters consist of four members who have to be citizens of B-H. When it comes to entity broadcasters, members must be residents
of that entity, while in BHRT two board members must be from the Federation
of B-H and two from Republika Srpska. Three members come from three constituent peoples of B-H and the fourth one is the member of the Others.14 The
Managing Board of the System/Corporation has 12 members and consists of all
managing board members of the three public broadcasters.
Managing board members are expected to work independently and not to

receive directions from the bodies that appointed them.15 Requirements
regarding the expertise of managing board members are not particularly
high. While the Law on BHRT and the Law on RTVFB-H find appointing the
See: Law on Public Radio-Television System of B-H (Sarajevo, October 2005), Official Gazette of B-H 78/05, entered into force 8 November 2005, Article 5, Law on Public RadioTelevision Service of RS (Banja Luka, May 2006), Official Gazette of RS 49/06, entered into
force 11 May 2006, Article 7.
8
Law on Public Radio-Television Service of B-H , Article 24; Law on Public Radio-Television
Service of RS, Article 44; Law on Public Radio-Television Service of FB-H, Article 23.
9
10
Ibid., BHRT Article 22(2), RTRS Article 43(2), RTVFB-H Article 22(2).
11
12
Ibid., Article 13(5).
13
In addition to the three main ethnic groups: Bosniaks, Serbs and Croats, as specified in the Constitution of BiH, there is the categoryof others, where all other national
minorities are placed. See: Constitution of BiH, Preamble, at http://www.dei.gov.ba/o_
bih/?id=49 (accessed 23 March 2012).
14
15
Supra note 9, BHRT lan 25(4), RTVFB-H Article 24(4), RTRS Article 45(4).
274
Later on, another attempt to depoliticize the process of managing board members election was made when it was prescribed that the parliament is in charge
with appointing managing boards members based on a bigger list of candidates
submitted by the CRA after a transparent election process. However, this provision was only kept in the Law on BHRT, while it was modified in the Law on RTRS,
where the role of the CRA in election process became the role of the parliamentary committee. Namely, the Law on Amendments of Law on RTRS18 makes the
CRA obligated to repeat the election in case the National Assembly of Republika
Srpska does not appoint members from the list submitted by the CRA. On the
other hand, the Law on RTVFB-H did not include this provision at all. Instead, the
law states that the longer list of candidates contains committees for election
and appointment of both houses of Parliament of FB-H.19
The Directors General of broadcasters and of the Corporation are appointed by
the managing boards in charge after public competitions. Limitations related to
managing board members are the same for General Directors. Therefore, legal
provisions are put in place in order to prevent political and business influences on
the election of the highest managing bodies. When it comes to ensuring national
equality, legal provisions are asymmetrical. The Law on System stipulates that the
president of the System Board and the General Director of the Corporation cannot be the members of the same people.20 The Law on RTVFB-H prescribes that a
member of the same people cannot be General Director twice in a row.21 On the
other hand, the Law on BHRT-u and the Law on RTRS do not have similar provisions.
Entity laws on public RTV broadcasters also stipulate the establishment of a program council of an exclusively consultative nature.22 Limitations for appointing the
managing boards members are also applied to appointing the council members.
16
Supra note 2 and 4, BHRT Article 26, RTVFB-H Article 25.
17
Ibid.
Law on Amendments of Law on RTRS (Banja Luka,July 2008), Official Gazette of RS

73/08. (Article 1).
18
19
20
Supra note 1, Article 15(n).
21
Supra note 4, Article 34(2).
22
Ibid., Article 29 and Supra note 3, Article 50.

275
most qualified candidates16 sufficient, the Law on RTRS does not have this
provision. On the other hand, the laws tend to disallow the influence of politics
and business on the management of public broadcasters, by prescribing that
managing boards members cannot take any governmental position at any level,
nor can they be members of political parties. Also, the employees of public
broadcasters and other similar companies, as well as other persons whose work
could cause conflict of interest, cannot be the members of managing boards.17
These councils should have eleven members elected after a public competition who
should include representatives of a wide range of social groups. While the Law on
RTVFB-H23 states that members should come from each canton, each constituent
people and the others, the Law on RTRS does not stipulate any kind of territorial or
national diversity regarding the members of the Council.24 Generally speaking, although the role of these councils is limited to being exclusively consultative, the
councils can potentially participate in the creation of program plans, providing staff
solutions, supervising the implementation of program norms, as well as informing
the public and parliaments about the work of public RTV broadcasters.
c) Funding
Funding for regular activities of public broadcasters comes from the RTV fee and
advertising. Additionally, the broadcasters can fundraise by commercializing
their own services.25 The Law on System stipulates that the money coming from
RTV fees as well as advertising net income should be collected and allocated as
following: 50% for BHRT and 25% for each entity broadcaster.26 Expenses of the
Corporation should be financed by the three broadcasters based on the usage
defined by the contract. Beside this, just as the broadcasters, the Corporation
can earn its incomes individually.27
However, in spite of public RTV broadcasters obligation to comply with the Law
on System, this obligation is not fulfilled in the Law on RTVFB-H. Namely, this law
stipulates that advertising income of RTVFB-H should primarily be used for financing the broadcasters activities and should not to be shared with others.28
An important novel feature of this law is that it defines the obligation of paying
RTV tax fee as a RTV fee based on owning a radio or TV receiver.29 In this way, the
obligation of financing the programs of public RTV broadcasters is not related
to whether someone watches the programs of these broadcasters or whether
they like them, but it belongs to all radio or TV set owners. Furthermore, the Law
on System presumes that every household and every legal entity own a radio or
TV set; this presumption can be denied by submitting a written statement that
requires an adequate verification.30
23
24
25
Supra note 9, (BHRT) Article 20, (RTVFBiH) Article 18. and (RTRS) Article 38.
26
27
28
Supra note 4, Article 18(3).
29
30
Ibid., Article 19.
276
Laws on public RTV broadcasting prescribe program principles and enforcement

guidelines, and define program prohibitions. Program principles highlight that RTV
programs serve the public and have to be in line with professional standards. According to the Law, public service broadcasters (PSBs) are obligated to present their plans
and reports on their accomplishments to both the public and parliaments, and every
citizen has the right to make suggestions and complaints regarding the program of
PSBs.31 Stations can serve public interest by broadcasting informative, cultural, educational, entertaining and sports programs.32 Such definition of obligations rejects the
objections made by those who claim that public RTV services should be limited only
to programs that cannot be provided by commercial broadcasters.
The specific nature of the B-H legislation is reflected in the fact that there are provisions ensuring that PSBs respect the linguistic, national religious and regional specificities of B-H. In that sense, the law prescribes that the programs include the three
official languages and two alphabets33, as well as that program production will ensure equal representation of programs related to the tradition of all three peoples
and an adequate representation of the others.34 The law also prescribes that the
broadcasters affirm cultural and other types of needs of national minorities in B-H.35
When it comes to the enforcement of program principles, the broadcasters are
requested to inform the public correctly, fully, impartially, and timely. The law
also emphasizes that comments must be clearly separated from the news.36 In
addition, broadcasters are expected to ensure open and free debate on matters
of public interest, to encourage the pluralism of ideas, to contribute to mutual
understanding of those who participate in debates, to cherish different forms of
art and to promote human rights and freedoms as democratic values of every
society. Public RTV broadcasters are also obligated to respect copyright laws, the
right to response, and the right to publish a correction.37 The law also protects
the confidentiality of sources of information and prescribes that confidential
sources can only be disclosed with a court order and only when it is necessary in
order to prevent severe criminal acts.38
31
Ibid., Article 26.
32
Ibid.
33
34
35
36
Ibid., Article 27.
Law on Public Radio-Television System of B-H Article 35, 37 and 38; Law on Public RadioTelevision Service of FB-H Article 47, 49 and 50; Law on Public Radio-Television Service of
RS 33, 34 and 35.
37
38
Ibid., BHRT Article 40, RTVFB-H Article 52, RTRS Article 36.
277
d) Program principles
Program prohibitions include encouraging and spreading hatred and discrimination, glorification of violence and crime, publishing false, immoral and pornographic content, as well as every other content that carries hidden messages
of which the citizens are not aware. Prohibitions that protect psychological and
physical development of children and youth are particularly emphasized.
The laws on public RTV broadcasters in B-H also contain provisions on program
representation. Namely, these provisions prescribe a certain percentage of European and domestic programs, as well as the obligation of ordering programs
from independent production and commercial outlets.39
The interesting fact about the laws on public RTV broadcasters is that they prescribe almost the same provisions on representations of program genres on all
three broadcasters.40 This means that the basic difference between them is the
fact that they are broadcasted in different areas (RTFVB-H in the Federation and
RTRS in Republika Srpska), that is, that the focus of their programs is different
(BHRT - international and state level, RTRS and RTVFB-H entity perspectives).
However, both presumptions are wrong to a great extent. First of all, the increase
of penetration of cable and IP television made all three broadcasters available
in the entire territory of B-H. Also, the provisions prescribing the entity or state
character of broadcasters are not based on a clearly defined distinction that is
as such recognized by the public; hence, broadcasters were not able to affirm as
such either. In one word, all three broadcasters deal with the same topics and
they are available in almost entire territory of B-H. At a first glance, such competition does not necessarily seem like a bad solution. Still, having in mind the
fact that public RTV broadcasters neglect the production of diverse programs
because it is simply impossible to include them in the program schedule of one
channel, there is the question of whether it is necessary to produce diverse high
quality contents or to compete with rather limited resources in the production
of same or similar programs. In addition, it should be kept in mind that all three
public RTV broadcasters are funded from RTV fees.
OTHER LEGAL PROVISIONS

Laws on service and the System define other important fields. These are the
principles of advertising and sponsorship, the issues of frequencies, as well as
the relation with the Communications Regulatory Agency.
39
Ibid., Article 29.
This principle was confirmed by the License of the System which prescribed the same
or at least very similar quotas regarding the production of different program genres for
all three public broadcasters.
40
278
Laws do not explicitly define frequencies as public goods used by public services,
but such perspective is supported by legal provisions.45 Namely, the CRA awards
frequencies to public broadcasters and also places a series of obligations before
public broadcasters. The CRA issues licenses for public broadcasters, that is, the
system license that covers all three public broadcasters. In the case of violation of
license provisions or of other CRA rules, this Agency can apply every sanction at
its disposal except suspending and revoking the license of a certain broadcaster.46
LAW AMENDMENTS
Legislators amended the laws on public RTV broadcasting several times. The National Assembly of Republika Srpska amended the Law on RTRS twice. The 2008
amendments changed the CRAs role in the process of election of members of
Managing Board of RTRS.47 Then, the 2010 amendments48 took advantage of the
fact that the existing laws on System and services were not precise enough and
decided that the property of RTRS was to be managed by the entity itself, and
the System remained only with the role of a coordinator in this regard.
Namely, the Law on System of B-H defined the Corporation of public services of
B-iH as a joint managing structure of the three B-H public broadcasters, in B-H,
which referred to BHRT, RTVFB-H and RTRS. The Corporation became in charge
of managing the property and technical resources49 on behalf of all three public broadcasters. However, the Corporations authorization over property is debatable because public broadcasters are independent and have an institutional
41
Law on Public Radio-Television System of B-H, Article 30.
42
Ibid., Article 31.
43
Ibid., Article 32.
44
Ibid., Article 34.
45
Ibid., Article 9.
46
Law on Public Radio-Television Service of RS, Article 11.
47
Supranota 18, (Article 1)
48
Ibid.
49
Law on Public Radio-Television System of B-H, Article 13, paragraph 2d.

279
Regulations related to advertising establish ethical principles of advertising41

and prescribe limitations of duration of advertisements,42 rules for advertising
in times of elections (make free program time obligatory for the presentation
of political candidates), as well as the prohibition of political advertising outside
the time of electoral campaigns.43 Sponsorship provisions also tend to eliminate
non-ethical practices that could allow sponsors to influence program content.44
autonomy with regard to managing and disposing the property.50 At the same
time, the laws on public broadcasters contain a provision stating that the Corporation is managing the property of broadcasters.51
The abovementioned amendments changed the role and responsibilities of the
Corporation in relation to RTRS. The law precisely states that the Corporation
coordinates the usage and management of the property and technical resources.52 Moreover, a new paragraph was added, prescribing that the National Assembly of RS should initially approve abandoning or transferring managing to
a third person that could have at their disposal movable and immovable estate
of RTRS.53 The Law on Amendments of RTV System of RS also requires the Managing Board of RTV Service of RS that it reaches consensus of all members when it
comes to making decisions on RTRS property.54 These amendments and changes of the Law on RTRS gave more authority and more independence to RTRS in
relation to the System of Public RTV Broadcasting in B-H.
The Parliamentary Assembly of B-H amended the Law on System of B-H55 and the
Law on BHRT56 in order to ensure an equal representation of genders and avoid
gender-based discrimination when appointing managing structures as well as
when it comes to employment in the Corporation and BHRT.
The Parliament of the Federation of B-H did not amend the Law on RTVFB-H, but it
has to be emphasized that the adopted law is not in line with the umbrella Law on
System of B-H and especially when it comes to allocating advertising income. RTVFB-H
benefits from such provision because advertising income is particularly important
for this RTV outlet and RTVFB-H income is much higher than that of the other two
broadcasters. Also, this provision rejects the notion prescribed by the Law on System
of B-H according to which an advertising company provides advertisements for all
three broadcasters within the Corporation.57 Therefore, just as it is the case with
RTRS, this provision increased the independence of the broadcaster at the expense
of having a united and functioning public broadcasting system.
Law on Public Radio-Television System of B-H, Article 4(d); Law on Public Radio-Television
Service of RS, Article 8(g).
50
Law on Public Radio-Television System of B-H, Article 19(2); Law on Public Radio-Television Service of FB-H , Article 17 (2); Law on Public Radio-Television Service of RS, Article
23(2).
51
52
53
Ibid., Article 1.
54
Ibid., Article 3.
Law on Amendments of the Law on Public Radio-Television System of B-H (Sarajevo, April
2010), Official Gazette of B-H 32/10.
55
Law on Amendments of the Law on Public Radio-Television Service of B-H (Sarajevo, April
56
57
Supra note 1, Article14(3).
280
The difficult process of creating the legislative framework on public broadcasting in Bosnia and Herzegovina lasted ten years. The first steps towards the
transformation of state broadcasters were taken and initiated by the Office of
the High Representative (OHR) in July 1998. Later on, the OHR made several decisions (July 1999, October 2001, May 2002) that established the three public
broadcasters in Bosnia and Herzegovina. Finally, in 2008, the Parliament of the
Federation adopted the Law on RTVFB-H, which formally created the legislative
framework for functioning of the entire System of Public Broadcasting. However, all initiatives for the establishment of a modern European legislative framework came from international community representatives while local politicians
mainly acted based on the perspective of ethnic exclusiveness with a tendency
of making the existing ethnic divisions legitimate or using different strategies
of postponing in order to sabotage the entire process. Representatives of Croatian political parties were particularly dissatisfied with the legal provisions and
started initiatives for the establishment of a special Croatian language channel.
These efforts included the appeal made before the Constitutional Court of B-H
in order to assess the constitutionality of existing laws. However, the Constitutional Court repudiated this appeal as unfounded.
Negotiations between the international community and local political forces
resulted in complicated, incomplete and dysfunctional legal provisions. The System of Public Broadcasting largely illustrated the dysfunctional organization of
Bosnia and Herzegovina. Instead of providing a clear framework which would
bring a true transformation of RTV services into public broadcasters serving all
citizens, these reforms greatly contributed to putting a mask on entity broadcasters while they remained close to political centers of decision-making and
dedicated their efforts to sustaining the ethnic status quo.
Finally, the implementation of law the sore spot of all legal provisions illustrated the entire glory of obstruction. The Corporation of Public Broadcasting
System has not been established yet and it is difficult to understand the reasons presented to the public in order to explain why this has not been done.
The financial situation of broadcasters is bad and the degree of paid RTV fee
is dissatisfactory. Movements for the boycott of paying the fee are still going
on. Impartiality and completeness program principles of entity broadcasters are
mainly interpreted as determined by political parties, and regulations referring
to language, letters and programs reflecting the tradition of various peoples and
minorities have been mainly neglected. Constant frictions among broadcasters
as well as within managing and supervising boards show that broadcasters deal
with their own problems and not with a quality enforcement of programs of
public interest.
281
DYSFUNCTIONAL SOLUTIONS
282
Chapter 10
CODES OF JOURNALISM
283
Vanja Ibrahimbegovi-Tihak
Ethical standards of professional journalism in B-H media are prescribed both by

laws described in other chapters of this publication and by a number of codes
which various actors of media community in Bosnia and Herzegovina use as a
system of norms for establishing professional standards.
Codes are found at the level of regulatory bodies (the Communications Regulatory Agency the CRA), self-regulatory bodies (such as the Press Council) as well
as at the level of individual associations of journalists.1
58
This text will be based on a comparative description and analysis of the main
professional principles of the existing ethical codes: Code on Broadcasting RTV
Program and Press Code and the Code of Honor of BH Journalists. The first part
gives a comparative overview of the most important provisions of all three
codes describing and, to some extent, explaining similarities and differences
among the abovementioned codes.
Comparative analysis has a thematic approach and deals with the ways in which
certain general professional principles important for the freedom of the media
(such as ban of hate speech, protection of privacy and protection of children and
minors) are treated in all codes included in the analysis as well as the way in
which media in B-H respect them in practice.
The last part of the analysis offers recommendations through which the respect
of human rights and freedoms could become more advanced in the media and
through the media. This could be done by advancing the understanding of the
role of both regulatory and self-regulatory bodies and through the establishment of an independent system of monitoring the work of journalists and editors in order to raise the level of respect of ethical codes.
MAIN PRINCIPLES OF CODES OF ETHICS

At the level of the Communications Regulatory Agency, agency that focuses
on the content broadcasted on radio and television, the main code of ethics is
the Code of Broadcasting RTV Programs created in 2008. At the level of the Press
The only code available to Internews team was the Code of Honor of B-H Journalists. Despite the fact that representatives of other journalists associations confirmed
that there is a similar document at the level of the association, they did not send it to
Internews team, nor did they make it publicly available on their websites or similar.
1
285
RULES AND CODES OF PROFESSIONAL ETHICS OF JOURNALISM
RUL E S A N D CODES OF PROFESSIO NAL E THICS O F

JOU R NAL IS M
CODES OF JOURNALIZAM
Council, the main code of ethics is the Press Code, adopted by all journalistic associations in 1999. This code is the system of norms of professional conduct and
was amended and changed in the years that followed.
This code is in line with standards of European practice in journalism, considering the fact that the Press Council of B-H is a member of the Association of
Independent Press Councils of Europe (AIPCE). Since 2011, online media have
been included in the system of self-regulation. Online media outlet accepted
the norms and values that come with the membership in Press Council, including the acceptance of norms given in Press Code. The Code of Honor of B-H Journalists provides norms for standards of ethics at the level of the Association of
B-H Journalists and was adopted at the associations meeting in 2004.
The initial provisions defining general professional principles in all codes contain the right to information, freedom of expression and ban on discrimination
on any basis. Also, all codes invoke the acts of international law and the domestic legislation that ensures the abovementioned rights.
When it comes to the right to information and freedom of expression, Article 1,
paragraph 2 of the Code on Broadcasting RTV Program states that: rules that
provide the conditions for ensuring the right to freedom of expression as it is stipulated by European Convention of Human Rights and Fundamental Freedoms as well
as with other instruments given in the Constitution of B-H which at the same time
respect generally accepted standards of decency, non-discrimination, fairness, accuracy, protection of minors and protection of privacy.2 Contrary to this general
approach and a wide interpretation of the purpose of Code on RTV Broadcasting,
that is, ensuring freedom of expression, the other two codes provide a more detailed insight into the matters of freedom of expression. Therefore, the practice
of journalism is the starting point of precisely these two codes.
59
Article 1 of the Press Code emphasizes general provisions according to which

journalists and editors are obligated to follow high norms of ethics in their work,
respect the needs of citizens for timely, useful and relevant information, as well
as defend freedom of expression and the right to critical journalism. The Code
also makes it mandatory to follow generally accepted standards of decency, respect cultural and religious differences in Bosnia and Herzegovina and to respect the human rights defined in international and domestic documents.
Articles 5 and 6 of the Code of Honor of B-H Journalists discuss the right of journalists to access information and the obligation to respect state secrets. On one
hand, journalists must have access to information and can inform the public
Code on RTV Broadcasting (Sarajevo, 31 January 2008), Official Gazette of B-H No.20/08,
entered into force in 2008. Part one General provisions, Article 1, paragraph 2, https://
www.parlament.ba/press/default.aspx?id=19274&langTag=bs-BA (accessed 26
March 2012).
2
286
Beside all that has been said, all three codes more or less thoroughly determine the issues of truth, objective and impartial, that is, accurate and fair reporting. The Press Code and the Code of Honor of B-H Journalists more precisely
define journalists duties and rights (Article 2,5,6,7 and 8 of the Press Code and
Articles 2-5 of the Code of Honor of BH journalists).
While Article 2 of the Press Code defines editorial responsibility related to
respecting the truth, that is, respecting the right of the public to know the
truth, Articles 5-7 define the understanding of truth to a greater detail. Article
5 states that print media shall not publish false and unverified information
in the form of photographs, texts and similar, nor shall they hide or keep any
type of information. They are also obligated to correct false information that
has been published after it is proven inaccurate and possibly to apologize. Article 6 emphasizes the importance of making a clear distinction between comments, assumptions and facts in order to have professional reporting in print
media, while Article 7 prescribes the obligation of providing a chance for a
response possibly in the same edition in which false information or accusation
was published.
Article 3 of the Code of Honor of B-H journalists states that even though journalists, just as all other citizens, have the right to political and other beliefs, when
performing their activities, they have to be objective in their reporting of current affairs, while Article 4 defines the obligation of journalists to provide objective and verified information and to reveal their source. Also, they have the
requirement of disclosing the source but in this case journalists have moral,
material and criminal liability for published data.
On the other hand, the Code on Broadcasting RTV Program approaches this
issue in its second part called General Program Standards (Articles 3-11) and
covers a wide scope of ethical norms, including: prohibition of hate speech,
protection of decency, fairness and impartiality in reporting, prohibition of
publishing false or deceiving content as well as the limitations on broadcasting violent and dangerous behavior, nudity, erotica and pornography. Also,
this part of the Code prescribes the obligation of warning the audience of certain program content.
287
about this if this is not enabled. Publishing certain information can be sanctioned, but if these restrictions are too strict, the authorities must be informed.
At this point, journalists have the duty to respect the ethics of public speaking and the culture of dialogue when they are in a public debate with other
people (Article 7) as well as to treat all suggestions, recommendations, and
criticism carefully and to inform the public about it (Article 8). It is a right and a
duty of journalists to advocate a free flow of information (Article 9).
SPECIFICITIES OF THREE CODES

Beside similar points of the three codes that have been mentioned it is also important to point out their differences. These codes differ in a great number of
elements: structure of the codes text, whether they regulate work in journalism
based on the type of media (electronic media and print/ online media), whether
the documents were passed within professional associations (in this case the
nature of media does not have a primary importance this belongs to the professional standards in journalism), etc.
Unlike the other two codes, the Code on Broadcasting RTV Program regulates specific
program content in its fifth part. Among others, this includes broadcasting program
content that includes paranormal abilities, exorcism or occult activities, alternative
medicine and quackery. The focus is in fact on a well-balanced approach. Namely,
when broadcasting such program content, the code requires comparison and emphasis of scientific and non-scientific assumptions related to these phenomena.3 In
addition, broadcasting such content as methods for solving health and other problems, and offering advice to the audience is prescribed exclusively within the limiting period of broadcasting.4 This period is defined as period of broadcasting certain
content which should not be available to the widest scope of audience due to their nature, and this period of time is between 00.00 and 05.00.5
60
61
62
The sixth part of the Code on RTV Broadcasting defines European audiovisual work
as well as their share and conditions of radio and TV broadcasting in Bosnia and
Herzegovina which equals 51% of programs. On the other hand, the seventh part
similarly defines what audiovisual works of B-H are, as well as their share in the
program (25% of the program). Generally, the purpose of such provisions is to ensure the diversity of program content in order to put limitations on monopolization of program by content of one type and cheaper production (such as soap
operas) which have a very questionable educational, artistic, etc. value. Also, the
purpose of these provisions is to establish minimum quota of content that promotes both the values and the identity of Europe and of Bosnia and Herzegovina.
In addition, one of the most important differences between this and the other
codes is the fact that the CRA has the authority of taking certain legal measures.
This means that, in line with the Communication Law of B-H, the CRA can sanction by
sending oral and written warnings, fines, or even by revoking broadcasting license
of electronic media for violation of provisions of the Code for RTV Broadcasting.
Contrary to this, violations of the Press Code do not have legally stipulated sanctions,
nor is there an institution that would determine these sanctions. Unlike the content
3
Ibid., Part five-special program standards, Article 21.
Ibid., Part five-special program standards, Article 21.
Ibid., Part one-general provisions, Article 1, paragraph 12.
288
Article 16 of the Press Code states that print media are to provide a space for
complaints and publishing an official denial for published contents. Although
the number of official denials increases every year since the Press Council was
established, the practice showed that this is still not at a satisfactory level.
The self-regulation tradition of print media in B-H is about 11 years long. It started with
the establishment of the Press Council in 2000. Since 2011, online media have become
included in the self-regulation system. They accepted the obligation of respecting the
Press Code and they have become involved in the work of Press Council. According
to O. Zlatev, self-regulation protects the rights of journalists to be independent and
impartial and to be judged for their professional mistakes by their colleagues and not
the authorities.6 The goal of self-regulation is setting minimum standards for accuracy,
professional ethics, protection of privacy and other rights, preserving editorial freedom and freedom of expression, and maintaining the pluralism of ideas and opinions.
1
Although the Press Council cherishes these values, in addition to constant financial
difficulties it also faces other problems common to self-regulatory institutions in entire South-East Europe: weak institutional capacities of professional media organizations, a low level of acceptance by certain interest groups, especially publishers, a
low level of public awareness on the existence of self-regulation mechanisms, low
credibility and functionality, and a small influence they have had on media so far.
PERCEPTION OF REGULATION AND SELF-REGULATION

In this case, the explanation for such problems in implementation in practice can be
found in the lack of democratic tradition. Monroe E. Price questions the efficiency
of the very concept of self-regulation in societies where democratic tradition
was not developed: The ideas involved in self-regulation allow a society that is
comfortable about its commitment to rule of law to find and develop space where
private institutions or associations are charged with the formation, implementation
and enforcement of norms. In societies where the tradition has been one of
arbitrariness, a gulf exists between articulation of norms and their meaning and
Ognian Zlatev, Media accountability systems (MAS) and their application in South East
Europe and Turkey, in Professional Journalism and Self- regulation New Media, Old Dilemma in SEE and Turkey, Paris: UNESCO, 2011, pp.17-39.
6
289
of electronic media in B-H regulated by the CRA in line with the Communication Law,
the content of print media is the subject of self-regulation, through the actions of
Press Council. In line with this code and other acts, the Complaints Commission of
the Press Council decides on controversial media content and determines whether
it violated the principles of the Press Code of B-H. In case the Complaints Commission
confirms that there was a violation, the media in question is obligated to publish a
correction. However, it is an editorial decision whether this will happen or not.
impact. Where corruption and nepotism have been a hallmarkand where tools for
testing and enforcing compliance are lacking, the very idea of self-regulation may
be premature.7
2
The public of Bosnia and Herzegovina has various perceptions of the regulation
and self-regulation of media just as of the role of regulatory and self-regulatory
bodies. Among all journalism workers, as well as among those who work in civil
society organizations, there are different understandings of the role of regulatory and self-regulatory bodies as shown by the survey Media situation estimate,
the first analytic report within the Project of strengthening independent
media in B-H conducted by Internews.. Accordingly, the grades of efficiency of
these bodies in carrying out their tasks also vary. Among these opinions, there
is a consensus on the need for a regulator (CRA) and for a self-regulatory body
(the Press Council), as well as that their activities do not bring expected results
regarding advancing ethical and professional standards in media of B-H.
As it was mentioned before, after the Press Council made the decision to include
online media in the system of self-regulation of media in the Press Code of B-H of
2011, also nominally norms the journalists work in online media. It is important
to emphasize that this process is still at the very beginning. There are specified
conditions under which a certain web portal is considered a medium that meets
the standards of being a member of the Press Council. While the writing of this
text was still in process, there were only a few web portals (not more than five)
that met these criteria. Ethical questions related to internet media are the subject
of a debate at global level, thus it is logical that such debate also exists in B-H, just
as it is logical to expect that this debate will become more intensive in the future.
Similarly to the Press Code, final provisions of the Code of Honor of Association BH Journalists point out that journalists who work in line with the Code enjoy the
support of their professional and union organization, whereas there are sanctions for violations of the Code prescribed by the Statute and the Rulebook. The
Association B-H Journalists is in charge of protecting and applying this Code.
Beside everything that has been said, Article 15 of the Press Code of B-H should also
be mentioned as it states that the print media in B-H should represent public interest, defined in this article as action and information intended to assist the public in
making their own judgments and decisions about issues and events, including efforts to detect or expose crimes or serious misdemeanors, and to prevent the public
from being misled by some statement or action of an individual or organization.8
3
Monroe E. Price, Media and Sovereignty: The Global Information Revolution and its Challenge to State Power, Cambridge: MIT Press, 2002, p.101.
7
Press Code of B-H (Sarajevo, 29 April 1999), Article 15 public interest, http://www.
vzs.ba/index.php?option=com_content&view=article&id=218&Itemid=9&lang=bs
(accessed 26 March 2012), the Code was amended in February 2005, in August 2006
and in December 2006 by the Press Council in Bosnia and Herzegovina and by all other
8
290
COMPARING THE MOST SIGNIFICANT STANDARDS OF THE CODE

As previously mentioned, this analysis is based on the comparison of treatment
of certain categories important for freedom of expression found in three codes
and it examines the application of these provisions in practice. This part of the
text deals with hate speech and the protection of privacy in general, as well as
the protection of childrens privacy taking into account the way in which these
fields are regulated by codes and how these provisions are respected in practice.
Ban on hate speech
The ban on hate speech9 is explicitly emphasized only in the Code on Broadcasting RTV program, which defines it as a type of speech intending to humiliate, scare or encourage violence or prejudice against a person or a group based
on their gender, race, age, nation, sexual orientation, sex/gender orientation,
handicap, moral or political beliefs, socio-economic status or profession.10 On
the other hand, the Press Code states that the press shall do its utmost not to
incite or inflame hatred or inequality on any grounds () The press shall under
no circumstances incite people to criminal acts or violence.11
4
However, especially in the past few years, the interpretations of these provisions have
differed between representatives of the profession, organizations of civil society, the
public in general and the institutions in charge of the implementation of the Code.
Namely, the report of the Communications Regulatory Agency (organization in
charge of the implementation of the Code on Broadcasting RTV Program) showed
associations of journalists in Bosnia and Herzegovina.
9
Supra note 2, Part two, Article 2.
10
Ibid., Part one, Article 2.
11
Press Code of B-H, Article 3.

291
Although the fact that this Article can be found in the Code points at a generally
positive way in which the profession of journalism is defined advocating the public
interest we should have in mind that such understanding of journalism is possible
only in theory and that in practice journalism is often subordinated to influences of
different interest groups, among which media owners and political parties are the
most important ones. This Code (Article 12) regulates advertising and sponsorship
and states that such content should be separated from editorial content. However,
the Code on RTV Broadcasting does not regulate this field at all. Issues such as advertising and sponsorship in electronic media are regulated by the Code on Advertising
and Sponsorship for Radio and Television, which in fact regulates the principles of advertising, telemarketing and sponsorship of radio and television stations.
that, in 2010, there were no cases of violation of this article of the Code.12 On the
other hand, in 2010, the public often stated that the CRA was responsible for not
sanctioning contents that, according to some interpretations, had characteristics of hate speech. Most often, such accusations were made by media representatives in Republika Srpska who asked for sanctioning the content broadcasted
in program of Federal Television 60 minuta. Moreover, some politicians openly
accused the CRA if justifying inciting rhetoric.13
7
However, Dunje Mijatovi, the OSCE representative for freedom of media stated
that if we take into account the definition of this concept14 and the practice of
the European Court, we can hardly speak about the rise of hate speech in B-H.
But what can be found is manipulation of this term in order to achieve some political interests. What certainly can be found in our political and generally social
discourse is a bitter struggle for power and positions using every possible tool,
hence every criticism is instantly stated to be hate speech, attack on national
treasure and similar. Every criticism of an individual is seen as an attack on the
entire people therefore, hate speech is not rising, it is the intentional manipulation which gives an impression of us being surrounded by hatred and not by
crime, corruption, unemployment and poverty.15
9
10
The Complaint Commission of the Press Council that decides on complaints

submitted to this institution, found violations of Article 3 of the Press Code (inciting journalism) on several occasions in 2010. Although there were several
complaints, two cases drew the attention of the public. As the Complaints Commission later established, violations of the Code repeated as new information
about these cases were repeatedly published. The first case is the one of journalist Duka Jurii, who complained four times to the Press Council because
of the inciting content in a series of articles published by Dnevni avaz between
December 23, 2009 and February 12, 2010.16 Each complaint stated that there
11
Communications Regulatory Agency, Report on violations of rules in 2010, http://www.

rak.ba/bih/results.php?searchinput=Izvje%C5%A1taj+o+slu%C4%8Dajevima+kr%C
5%A1enja+pravila+u+2010&submit=Tra%C5%BEi (accessed 27 March 2012).
12
Nezavisne novine, RAK pravda hukaku retoriku (The CRA justifies a stiring-up rhetoric), 17 March 2011, No. 4516, p. 5, quote of Aleksandar Dombi.
13
According to the definition of the Council of Europe, hate speech is speech which encourages discrimination and/or violence towards another person or a group based on
any type of difference. This definition is confirmed in the practice of the European Court
by requiring that along with proving hate speech is should also be proved that there is a
direct danger of the violence which could be caused by such speech (op.a. V.I.T.).
14
Mijatovi, Dunja Nije u porastu govor mrnje, ve manipulacije: intervju sa Dunjom

Mijatovi (Hate speech is not increasing, it is manipulations: interview with Dunja
Mijatovi), Duka Jurii, Dani No. 743, (9 September 2011).
15
Meetings of the Complaints Commission of the Press Council in B-H regarding all four
texts in Dnevni avaz, held in 2010, and the decision on the text published on 23 December 2009, all belong to statistical data of 2010 (op.a. V.I.T.).
16
292
However, according to the decisions of the Complaints Commission,17 the procedure was not complete since the complainant did not contact the editorial office and did not ask for correction before submitting the complaint to the Press
Council. Still, the decisions emphasize that procedural omissions did not change
the fact that these texts severely violated Article 3 of the Code.18
12
13
The second case refers to a public debate between journalist and publicist Fatmir Alispahi and writer Marko Veovi, published in weekly newspaper Dani
in column Reactions between May 7 and 21, 2010. Fatmir Alispahi filed a complaint. According to the decisions of the Complaints Commission of the Press
Council in all cases solved by self-regulation, that is, by publishing a retraction,
both people in this case severely violated the Code (Article 1 - General Provisions, Article 3 Incitement and Article 4 Discrimination).19
14
Article 19 of the Code of Honor of B-H Journalists stipulates refraining from publishing pejorative qualifications related to race, skin color, religion, gender or
sexual orientation, and every physical or mental shortcoming...20 This article does
not explicitly treat hatred or encouraging hatred or actions in which they could directly result. Activities of this Association that are the response to Code violations
in these and other cases are limited to public statements detecting and evaluating
15
Decisions on complaints made by Duka Jurii related to texts published in Dnevni

avaz on 23 December 2009, text Tira Avaza nije pao, pala je struka na FTV-u (Circulation of Avaz is not getting lower, it is the expertese on FTV), complaint 383/10;
20 January 2010, text Duka Jurii smijenjena, antibonjaka politika ostaje (Duka
Jurii removed from her position, anti-Bosniak policy remains), complaint 384/10; 1
February 2010, text Duka Jurii i dalje bjelkinja (Duka Jurii is still white), complaint 385/10; 12 February 2010, text Duka Jurii ukljanjala je nepodobne Bonjake
(Duka Jurii removed unsuitable Bosniaks), complaint 386/10. All complaints available
at: http://www.vzs.ba/index.php?option=com_content&view=category&id=22:krat
ak-pregled-albi-po-godinama&Itemid=23 (accessed 27 March 2012).
17
18
Ibid.
Decisions on complaints of Fatmir Alispahi regarding texts published in B-H Dani

magazine, 7 May 2010, text Dvije sablasti (Two ghosts), complaint 419/10; 14 May
2010, text Prorok iz Jagomira (A prophet from Jagomir), complaint 420/10; 21 May
2010, text Nisam imbecil (Im not an imbecile), complaint 421/10; Parts of Mr.
Alispahis texts quoted in articles written by Mr. Veovi are clearly hate speech and a
drastic violation of the Code in its Article 1 General provisions, Article 3 Incitement
and Article 4 Discrimination. Also, the vocabulary used by Mr. Veovi as a reaction on the hate speech is entirely inappropriate and also violates the Press Code of
B-H, Article 1 General provisions and Article 4 Discrimination. http://www.vzs.ba/
index.php?option=com_content&view=category&id=22:kratak-pregled-albi-pogodinama&Itemid=23 (accessed 27 March 2012).
19
The Code of Honor of B-H Journalists (10 December 2004), Article 19, http://www.
bhnovinari.ba/index.php?option=com_content&view=article&id=362&Itemid=223&
lang=bs (accessed 27 March 2012).
20
293
was hate speech and the violation of Article 3 of the Press Code.
these occurrences and calling for the respect of norms and standards of the profession. Stipulated sanctions vary from warnings, public warnings to exclusions
from the association, but so far no member of the Association has been excluded.
In 2010, the Managing Board of B-H Journalists has not reacted publicly at all
when it comes to violations of Article 19 of the Code. Moreover, most reactions
during this year referred to public protests against violations of rights and freedoms of journalists in different concrete cases, most often against their employers
or public figures and politicians who inappropriately spoke about journalists.21
16
Although analyzed reports did not formally find or found very little hate speech
in media, in the past year there have been many public debates about its presence in the media and in public in general.22 The fact that there is public discussion on hate speech contributes to the statement of Dunja Mijatovi that
hate speech has become a weapon of politicians who use media to express hate
speech and manipulate the public. This way, media have become instruments
serving political elites in order to achieve their political goals.
17
Even though there have been few cases of hate speech in print media, the cases
that have been registered show that the media were used as an instrument for
dealing with opponents and in the sphere of public life outside politics.
Protection of privacy and minors
Protection of privacy is extremely important in professional journalism work and,
as such, it is discussed in all codes. All codes ensure the protection of privacy and
explicitly determine that every violation of privacy must be justified by public interest.23 However, as the meaning of public interest is not precise, it leaves space for different interpretations. According to the Press Code, reporting on court proceedings
requires a particularly delicate approach especially when it comes to cases dealing
with war crimes. Article 10 of the Code prohibits calling someone a criminal before
the judgment is issued, as well as not publishing information about the repudiation
of a judgment or releasing the judgment of the person in this context.
18
In 2010, the Communications Regulatory Agency found only one violation of Article
B-H Journalists, Press releases, http://www.bhnovinari.ba/index.php?option=com_co
ntent&view=category&id=62&Itemid=240&lang=bs (accessed 27 March 2012).
21
This was also confirmed at a series of round tables held in Sarajevo, Mostar and Banjaluka in June 2011, organized by Internews Network. The participants came from media
community, NGO sector as well as from academic community and the practice in media
law. One of the conclusions was that hate speech occurred in the media in past period,
because this was the way of communication of politicians in B-H, which was a regular
subject of reporting and disseminating in the media. Video records from round tables is
available at: www.internews.ba (accessed 27 March 2012).
22
The Code on Broadcasting RTV Program, Part four, Article 16; the Press Code, Article 9;
the Code of Honor of B-H Journalists, Article 16.
23
294
19
When it comes to violations of the principle of protection of privacy in print

media, the Press Councils statistics show eight complaints in 2010, three of
which were accepted, one was not and the rest was solved through mediation, that is, by publishing a reaction. Out of these eight complaints, five
were published in the Express magazine and three in Dnevni avaz on February 24, 2010. One of the accepted complaints referred to drastic violations of
the right to privacy when Dnevni avaz reported on a suicide and published
a photograph of the victim.25 The other two accepted complaints referred to
the violation of Article 10 of the Press Code (inappropriate reporting about
persons charged with criminal offences) found in texts published in Express26 and Dnevni avaz.27 In 2010, there was no case where the Association
of B-H Journalists reacted to privacy violations.
20
21
22
The question of protection of privacy and identity of children and minors, a special
segment of protection of privacy, is also discussed in all codes for professional
reporting. In all circumstances, and especially in cases of reporting on criminal offenses where children are committers, participants, or victims, this issue has a special place and enjoys special attention when defining professional reporting. The
protection of privacy and identity is the only ethical approach to cases where children appear. However, based on the abovementioned reports of monitoring of
violations of the Code for Professional Reporting in B-H, in 2010, B-H media violated
the principles of protection of identity of minors and children in numerous cases.
According to the data of the Communications Regulatory Agency, there were
eleven violations of these principles in 2010. In eight of these cases, the violation
24
Supra note 12.
Press Council, Cases in 2010, an overview: Dnevni avaz in text Srednjokolka i njen
mladi raznijeli se bombom (A highschool girl and her boyfriend kill themselves
with a bomb), 24 February 2010, complaint 387/10, http://www.vzs.ba/index.
php?option=com_content&view=article&id=192:2010-349-kb&catid=22:kratakpregled-albi-po-godinama&Itemid=23 (accessed 27 March 2012).
25
Press Council, Cases in 2010, an overview: magazine Express, in text: Nedad Ajnadi
mora krivino odgovarati za smrt 126 patriota (Criminal charges must be pressed
against Nedad Ajnadi for the death of 126 patriots), 13 May 2010, complaint 422/10,
http://www.vzs.ba/index.php?option=com_content&view=article&id=192:2010-349kb&catid=22:kratak-pregled-albi-po-godinama&Itemid=23 (accessed 27 March 2012).
26
Press Council, Cases in 2010, an overview: Dnevni avaz in text: Zato smeta osniva
SBB-a? (Why is the founder of SBB bothering anyone?), 4 February 2010, complaint 390/10,
http://www.vzs.ba/index.php?option=com_content&view=article&id=192:2010-349kb&catid=22:kratak-pregled-albi-po-godinama&Itemid=23 (accessed 27 March 2012).
27
295
16 (Protection of privacy, general principles paragraphs (4) and (6) of the Code on Broadcasting RTV Program)24. Even though the report did not specify which case this was, it
emphasized that the challenged statements were published on March 30, 2010 on RTVFB-H and that the sanction for violation was a written warning for this media outlet.
of Article 14 of the Code on Broadcasting RTV Program (Reporting on criminal offences involving minors) occurred, whereas in three cases there was a violation
of Article 12 of the Code (General Principles, the third part which deals with protection of children and minors).28 It is important to note that all these violations
happened on the same day September 2, 2010. Media outlets that broadcasted the content violating the principles of protection of privacy of children and
minors were: Alternativna TV, RTV FB-H, BHRT, Hayat, OBN, RTRS, RTVBN and Pink
B-H. These violations were sanctioned by issuing written warnings to all outlets
except TVSA, which received an oral warning.
23
When it comes to violations of the Press Code in the field of privacy protection for children and minors, the Press Council received thirteen complaints
regarding the violation of this principle in print media and, in these cases, the
Complaints Commission found a violation of Article 11 (Protection of children
and minors as victims of sexual abuse). At the same time, the Commission also
found violations of Article 4a (Gender equality), Article 9 (Privacy), etc. Seven complaints referred to same case. Almost all daily newspapers published
a story stating that the Minister of Security of B-H was accused of sexually
abusing of a girl whose identity was revealed (as published in Nezavisne novine, Dnevni avaz, Glas Srpske and SAN).29 The other six cases also referred to
instances where the identity of minor victims who suffered sexual abuse was
revealed (mainly indirectly, publishing the names of caregivers or parents who
24
28
Supra note 12.
Nezavisne novine, complaint of Organization Zdravo da ste, regarding text

Ahmetovi pod istragom zbog pedofilije (Ahmetovi under investigation because of
pedophyila), 16 March 2010, complaint 398/10.
Dnevni avaz, complaint of Organization Zdravo da ste, regarding text Seks afera:
Ahmetoviu pakuje autor lanog spiska terorista (Sex affair: Ahmetovi is a victim of
the author of a phony list of terrorists), 17 March 2010, complaint 399/10.
Glas Srpske, complaint of Organization Zdravo da ste, regarding text Ministar Sadik
Ahmetovi i jo 16 lica bludniili nad djevojicom (Minister Sadik Ahmetovi and 16
other people harrass a girl), 16 March 2010, complaint 397/10.
SAN, complaint of Organization Zdravo da ste, regarding text Ministar Ahmetovi: Ovo
su mi podmetnuli (Minister Ahmetovi: I was framed), 17 March 2010, complaint 402/10.
Nezavisne novine, complaint of Association Udruene ene Banja Luka, regarding text
Dolazili po djevojicu mukarci u modernim autima (Men in modern cars came to pick
up a girl), 17 March 2010, complaint 405/10.
Glas Srpske, complaint of Association Udruene ene Banja Luka, regarding text Ministar Sadik Ahmetovi i jo 16 lica bludniili nad djevojicom (Minister Sadik Ahmetovi
and 16 other people harrassed a girl), 17 March 2010, complaint 404/10.
SAN, complaint of Association Udruene ene Banja Luka, regarding text Ministar Ahmetovi: Ovo su mi podmetnuli (Minister Ahmetovi: I was framed), 17
March 2010, complaint 403/10. All complaints are available at: http://www.vzs.ba/
index.php?option=com_content&view=category&id=22:kratak-pregled-albipogodinama&Itemid=23 (accessed 27 March 2012).
29
296
25
When it comes to violations of the privacy principle regarding minors and children
in the Code of Honor of B-H Journalists in 2010 the Association reacted only once,
in the abovementioned case of publishing the identity of the sexually abused
girl, when reporting about the arrest of the rapists. The Association made a public
statement and reacted against all media that published this story and revealed
the identity of the victim, urging regulatory (the CRA) and self-regulatory bodies
(the Press Council) to sanction these violations in line with the law.31
26
As it was shown, reports of regulatory and self-regulatory bodies do not show

worrying results in the case of violation of privacy but this number increases
significantly when it comes to the lack of protection of identity of children and
minors. The analysis showed that the media are prepared to reveal the identity
of a minor who was a victim of a sexual violence in order to discredit a certain
political figure or to sell more copies.
Also, when it comes to unprofessional reporting in electronic media on criminal
offenses involving minors, most sanctions of the Communications Regulatory
Agency were written warnings except one case in which the sanction was an
oral warning. Considering the fact that the violations infringed upon rights
of children and minors who are protected by international legal documents
also used by domestic legislation, the sanctions for these violations were
Osloboenje, complaint of Organization Zdravo da ste, regarding text Akcija MUP-a
RS na podruju Bratunca i Srebrenice: Uhapeno 17 osoba zbog veze sa prostitucijom
(Actions of the Police of RS in the area of Bratunac and Srebrenica: 17 people arrested
because of their connections with prostitution), 16 March 2010, complaint 401/10.
Nezavisne novine, complaint of Association Udruene ene Banja Luka, regarding
text Puteni Durakovi, Huseinovi, Rakni i Joki (Durakovi, Huseinovi, Rakni and
Joki released), 18 march 2010, complaint 407/10.
Press RS, complaint of Association Udruene ene Banja Luka, regarding text Uhapeni
hoda, tri policajca i pet profesora (One imam, three policemen and five professors arrested), 17 March 2010, complaint 408/10.
Nezavisne novine, complaint of Gender Center of the Government of RS, director
Spomenka Kruni, regarding text I za roendan bez drugara (No friends even on birthday), 11 April 2010, complaint 413/10.
Nezavisne novine, complaint of Gender Center of the Government of RS, director
Spomenka Kruni, regarding text Djevojici stie pomo (Girl will get help), 16 April
2010, complaint 414/10.
Dnevni avaz, complaint of Jovan Divjak, executive director of association Obrazovanje
gradi BiH, regarding text Djevojica, rtva brojnih silovanja, ostavila tek roenu bebu
(Victim of numerous rapes, a girl, leaves her newborn baby), 17 December 2010, 479/10.
30
B-H Journalists, Mediji prekrili kodeks objavivi identitet maloljetne rtve lanca prostitucije (Media violated the Code by revealing the identity of a victim of prostitution, a
minor), 17 March 2010, www.bhnovinari.ba/index.php?option=com_content&view=
article&id=330%3Amediji-prekrili-kodeks-objavivi-identitet-maloljetnertve-lancaprostitucije-&catid=62%3Asaopenja&Itemid=240&lang=bs (accessed 27 March 2012).
31
297
were also the abusers in some cases).30
inappropriately low. It is more than justified to ask whether the message sent
by such actions to editors is that a sensationalist approach at the expense of
protection of rights of children is allowed or justified. Although it is quite clear
that this way of reporting is in directly opposition to Articles 12 and 14 of the
Code on Broadcasting RTV Program, the very reaction of the Association B-H
Journalists, urging regulatory and self-regulatory bodies to react on the case of
publishing the identity of minors, confirms the need of having such issues be
open to public debate.
The problem of violations of ethical codes is even more evident when we take
into account that analyzes reports are conditional. Specifically, although these
reports are created by relevant institutions, the monitoring of violations of professional codes is not an activity systematically conducted by the CRA or the
Association of B-H Journalists.
This means that the CRA (in 80% of cases) and the Press Council (in 99% of cases)
process the violations of professional codes on the basis of citizen complaints
regarding content published in media; citizens will bring issues to the attention
of these bodies mainly when they defend their own interests and rights, or when
they represent interests and rights of a certain group. As for the Association of
B-H Journalists, their activities are mostly based on monitoring the numerous
violations of the journalists rights in B-H. This association reacts by defending
ethical principles of the profession only sporadically, when it comes to flagrant
violations of the Code of Honor. Therefore, it can be concluded that the true number of violations of professional journalistic codes is certainly higher than the
number of cases processed in the system of regulation and self-regulation. This
is another fact we should keep in mind when reading this analysis. Moreover,
the long procedure of treating complaints submitted to the CRA (procedure that
takes about six months) renders the process of regulation more inefficient.
From the perspective of regulatory or self-regulatory bodies, these procedures
are in place in order to protect freedom of expression. Namely, both institutions
are reluctant to monitor media content because this can be considered a form
of censorship. This precisely emphasizes the need to establish an institution that
could serve as a watchdog for media content in B-H.
RECOMMENDATIONS TO ADVANCE PROFESSIONAL STANDARDS OF JOURNALISM

The goal of this analysis was to identify current problems in the sphere of
ethics and professional journalism, as well as issues with respecting freedom
of expression, through the lens of regulatory and self-regulatory systems.
Considering the given facts, it seems that there are two recommended directions
for implementing ethical standards in B-H journalism. One direction is initiating
298
Strengthening the watchdog function

It is necessary to establish, support and develop a system of continuously monitoring media content and registering ethics violations, as well as publishing
them regularly in order to bring them to the publics attention. The most logical
solution seems to be the organization of a monitoring body by independent,
non-governmental, expert and/or academic groups. As there are no institutions
in B-H specialized in monitoring activities, their establishment and development
is another part of the domain of institutional development. There are numerous possibilities regarding the way in which media watchdog can be developed.
The start and the basis for this is the standardization of criteria for quality media content (in line with existing codes and other norms). Regular publishing of
monitoring results could have an influence on both media professionals, who
would avoid ethics violations, as well as on the activities of regulatory and selfregulatory bodies, which could base to some extent their reactions to code violations on monitoring results. The latter would enable registering and possibly
sanctioning a greater number of violations. This approach could have a direct
influence on the perceptions that citizens and representatives of civil society
organizations and associations of journalists have on the efficiency of these institutions.
Support to media literacy
This support should actually be a support of educational activities with the
ultimate goal of enabling the public to approach media content analytically
in order to recognize the content which is not in accordance with professional
ethics and, hence, to articulate its requests towards the media. The expected
result is an increase in the quality of media content that would mainly be led
by the interests of the general public and not the interests of certain narrow
interest groups.
There are many different models of advancing media literacy, starting from developing and introducing media literacy in educational curricula at all levels to
different forms of advocacy. Along with both directions of recommended actions, it is necessary to advocate the encouragement of existing systems of selfregulation and regulation of media:

Self-regulation implies the popularization of the Press Councils role and

encouraging the readership to react more often to Press Code violations.
This activity is complementary to the process of media literacy and can be
299
and developing a watchdog for monitoring media content and the second
would be increasing media literacy.
an additional activity in these processes.

300
Regulation of electronic media includes a constant advance of transparency, independence, efficiency and expertise of the Communications Regulatory Agency in order for the trust of public, governmental structures and
media industry to reach a level that would enable this regulator to work
undisturbed.
Chapter 11
MEDIA OWNERSHIP
301
302
ejla Jusufovi
The media are the information arm of an industrialised order, the mass production
of messages directed towards opinion formation or the provision of entertainment
which itself contains a host of implicit values.1
27
As communication is at the heart of human interaction, the media forms one

of the most vital mediums for dissemination of information, and, in order to
provide credible and transparent information, different sources have to exist in
order to sustain pluralism and diversity as a form of democratic communication. In addition to diversity in the media, freedom and independence of mass
media is also an essential component and a precondition of a democratic and
open society. This notion, which in itself is an implicit value of media, is used as a
reference point by the European Court of Human Rights (ECHR) when delivering
judgments. According to relevant judgments of the ECHR:
Freedom of the Media () implies that the public has a right to a free media system,
which provides overall balanced, full and varied information. The underlying idea is
that a free system of this kind is an essential prerequisite for a functioning democracy.2
28
Due to the fast-paced market environment as a result of the technological advances after the 1990s, and the increased competition in the so-called digital
revolution, the media industry had to cope for survival. The media sector has
been transformed by converging it to the telecommunications and IT sectors,
and at the same time by giving way to new interactive broadcasting services
through the use of different technologies, encouraging greater diversity across
the media sector. Entry barriers have been reduced in order to stimulate the
free market economy and allow media corporations to compete with ease like
never before. As a result, the number of broadcast channels in Europe has rapidly increased, welcoming an array of new and diverse content producers into
the media market. However, despite the explosion of media and communications technology, the new competitive media landscape has shown a tendency
towards greater concentration of ownership of the media in fewer and fewer
hands. As Gillian Doyle states:
OBrien Cruise Rita, Mass Media Ownership: An Analytical Summary of Transnational and
National Trends, p. 1, http://unesdoc.unesco.org/images/0003/000342/034216eb.pdf
(Accessed 8 December 2011).
1
Cited in OSCE Representative on Freedom of the Media, The
Impact of Media Concentration on Professional Journalism, Vienna: OSCE, 2003, p.15 (Bruck, A. Peter, Media Diversity
in Europe: Report to the Council of Europe (Strasbourg, December 2002).
2
303
MEDIA OWNERSHIP AND CONCENTRATION: CONCEPTUAL AND LEGAL FRAMEWORK
MEDIA OWNERSHIP AND CONCENTR ATION: CONCEPTUAL AND

LEGAL FR AME WORK
MEDIA OWNERSHIP
Digitization and converging technologies have encouraged strategies of expansion,

diversification and ever-increasing concentration of ownership amongst leading
players in the media and communications industries.3
29
In the midst of these changes, a law on competition has been applied in order to
accommodate these trends that aims not only to safeguard a competitive market process (i.e., the efficient production of commoditized media), but also to
ensure a democratic communications order.4 However, this has presented European regulators and policy-makers with complex and difficult challenges as
they are caught in a dilemma between these two principles. On the one hand,
they strive to keep the competitive media market thriving, and on the other
hand, they need to ensure that pluralism and diversity are not hindered by this
process. Hence, the issue of regulation cannot be ignored as it is affected by the
changes discussed in this paper.
30
The paper will first introduce the notions of pluralism and diversity and see how
these terms relate to media ownership and concentration. Then, the paper will
explain why it is important to care about these issues. Furthermore, the paper
will examine the EU framework, its competition policy actors and instruments
used when dealing with media concentration issues. The paper will continue
by assessing the legal framework in Bosnia and Herzegovina by providing an
overview of the rules and regulations in place. Finally, the reader will gain a comprehensive overview of the major media ownership concentration issues, which
can serve for further research and analysis on the topic.
OVERVIEW OF THE ROLE OF THE MEDIA IN A DEMOCRATIC SOCIETY

The availability of information is vital for better decision-making in a democratic
and open society where individual citizens have the opportunity to be part in this
process. Nevertheless, the media primarily serves as a watchdog, responsible for
informing its citizens and consumers on the actions of private and public actors,
by providing alternative opinions and political choices through diverse and pluralistic media outlets. Hence, the media holds an important democracy enhancing
role in the society - that of an informant and communications facilitator.
Considering the aforementioned technological developments that contributed to the growth of new, wider multimedia corporations, and the democracyenhancing role of the media, many questions arise. How do the media cope
with the digital revolution and convergence? What is the main concern when it
Doyle, Gillian, Media Ownership: The Economics and Politics of Convergence and Concentration in the UK and European Media, Glasgow: Sage Publications Ltd., 2002, p.1.
3
Ario, Mnica, Competition Law and Pluralism in European Digital Broadcasting: Addressing the Gaps, Communications and Strategies, no.54, 2nd quarter, (2004): p. 97.
4
304
MEDIA CONCENTRATION CONCERNS

Even though there has been some contention over the definitions of pluralism
and diversity - often viewed to possess a multi-dimensional conception, pluralism is generally used to justify measures in support of freedom of expression or
diversity of information sources.5
31
In their research on European approaches to media ownership, Alison Harcourt

and Stefan Verhulst give a comprehensive definition of a pluralistic media:
A pluralistic media is seen to meet the demands of democracy by providing citizens
with a broad range of information and opinions; to represent minorities giving them
the opportunity to maintain their separate existence in a larger society; to reduce
the event of social conflict by increasing understanding between conflicting groups
or interests; to contribute to overall cultural variety; to facilitate social and cultural
change, particularly when it provides access to weak or marginal social groups.6
32
The above definition demonstrates that pluralism is indeed a broad issue, and
can be viewed from different perspectives. However, the central purpose of upholding such a term in reference to this paper is that it is a vital contributor to an
open and free media system. The European Union (EU) as well as many EU states
have been an ardent supporter of plurality in the media sphere.7
33
In this respect democratic communications order refers to the availability of pluralism

and diversity in the media.
European Commission, Pluralism and Media Concentration in the Internal Market An
Assessment of the Need for Community Action , Green Paper (Brussels, 23 December 1992),
COM(92) 480final, p.14.
See also Iosifides, Petros, Pluralism and Media Concentration policy in the European Union,
The Public, Vol.4, 1997, p.86.
5
Harcourt, Alison and Stefan Verhulst, Support for Regulation and Transparency of
Media Ownership and Concentration Russia, Study of European Approaches to Media
Ownership, http://www.medialaw.ru/e_pages/publications/e-conc.htm (accessed 8
December 2011).
6
For more information see: Commission Staff Working Document, Media Pluralism in the
Member States in the European Union, Brussels, SEC (2007) 32, 16 January 2007, p.5 ; United
Kingdom Department of Trade and Industry and Department of Culture, Media and Sport,
Media Ownership Consultation Paper 2001, London, 2001, paragraph 1.3;The Green Paper
was formulated to assess Communitys (EU) actions concerning concentration in the
media, namely television, radio and the press. Such actions concern possible regulatory
measures used to restrict consentartion in the media and safeguard pluralism.
7
305
comes to media ownership, and to what extent? Is it in line with the principles of
a democratic society that supports pluralism and diversity of viewpoints? How
are these principles preserved and encouraged in a given media market?
MEDIA OWNERSHIP
In order to sustain plurality of opinions and encourage diversity of content in the

media market, the government imposed a framework for media ownership with
set rules and regulations that protects these principles. However, aside from sustaining these values, the framework must at the same time promote the most
competitive market in order to cope with the increasing competition for media
businesses and attract new investment for economical advancement.
The outcome of technological advancement and the rise in competitive market
structures is evident in the increased trend towards concentrated media ownership as a result of market convergence.8 This trend gave rise to integrated conglomerates across the media sector. One of the most influential and known conglomerates in the European Union are the German Bertelsmann, Vivendi and Sky,
whose activities span over various levels of industry and over several sectors.
34
Media concentration can occur in a number of ways and for different purposes
through mergers, acquisitions, take-overs, and cross-ownership.9 In the following section the most common merger typologies will be explained.
35
Merger typologies
Two types of integration and mergers are often noted - horizontal and vertical.
However, in his book on Media Ownership, Gillian Doyle explains one more typology, typical of media concentration, namely, the Diagonal or lateral expansion.
Doyle points out that vertical mergers expand either forward into succeeding stages or backward into preceding stages in the supply chain.10 Hence,
this kind of concentration deals with joint ownership of different stages of
the production and distribution chain. The rationale behind this strategy is
to reduce transaction costs by engaging in activities across various industries such as the creation of media output through distribution of networks
or retail of output. As Doyle states, such integration allows media players
to hold control over their operating environment and can also help them
avoid losing market access in important upstream or downstream phases.11
36
37
Market convergence occurs when broadcasting, print media and radio combine services either through mergers, acquisitions and alliances.
8
The Commission has issued the Notice on the concept of concentration under Council
Regulation on the control of concentration between undertakings (1989 EC Merger Regulation) . This Notice serves as a guideline as to how the Commission interprets the term
concentration under the EC Merger Regulation. See: Commission Notice on the concept
of concentration under Council Regulation (EEC) No 4064/89 on the control of concentration between undertakings, Official Journal C 66/5, entered into force 2 March 1998 (98/C
66/02), http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:1998:066:0005:0
013:EN:PDF (accessed 16 February 2012).
9
10
Ibid., p.4.
11
Supra note 3, pp.4-5.
306
38
Another type of vertical integration can occur in the case of a book publisher that controls a printing company where it publishes its books along with other clients books.13
An example in the case of vertical broadcast integration is evident in the acquisition of
DirectTV (an American direct broadcast satellite service provider and broadcaster) by
News Corporation (News Corp.) - the multinational media conglomerate headquartered in the USA. Through this integration, DirectTV is able to distribute more of its
media content such as news, movies and television shows to a wider audience.
39
A horizontal merger occurs when two firms at the same stage in the supply
chain or who are engaged in the same activity combine forces.14 This strategy
allows firms to expand their market share in order to rationalize resources and
gain economies of scale. Moreover, firms that do business in the same field can
benefit from joining forces by applying their skills and labor, once again making
use of economies of scale. An example of horizontal integration can be seen
between News Corp and the dominant Italian Telepi pay-TV that started operating via analogue-terrestrial means in 1991 and went satellite in 1996.15
7440
41
The above typologies of media concentration can occur beyond national frontiers
as well. Globalization has shifted the economy from local to global without surpassing the media sector. As a result, media firms have become transnational owning corporations in various parts of the globe. Such integration has been referred
to as cross-border media concentration. A vivid example of such concentration
is evident in Rupert Murdochs press and pay television empire, the News Corporation - the second world largest media conglomerate. As illustrated earlier, this
media conglomerate owns various broadcasting service providers. In Europe, the
most notorious pay TV companies such as the Italian Sky Italia, is wholly owned
Gambaro Marco, Vertical Integration in Media Industries, http://userpage.fu-berlin.
de/~jmueller/its/conf/porto05/papers/Gambaro.pdf (accessed 14 February 2012),
pp.2-3.
12
13
Ibid., p.3.
Doyle, Media Ownership: The Economics and Politics of Convergence and Concentration
in the UK and European Media, p.4.
14
Miguel Mendes Pereira, Vertical and Horizontal Integration in the Media Sector and EU
Competition Law: The ICT and Media Sectors within the EU Policy Framework, Brussels,
April 7, 2003, http://ec.europa.eu/competition/speeches/text/sp2003_009_en.pdf
(accessed 15 February 2012), pp.9-10.
15
307
This can occur in the case of a television company setting up a film production company whose broadcasting rights are all transmitted by the television parent company. The vertical integrated firm holds complete control
over the concurring stages of production and distribution, and thus enjoys
complete flexibility to make decisions concerning investment, production
and distribution.12 Therefore, allowing ownership of broadcast channels and
services, as well as control of the means of distributing them to the audience.
MEDIA OWNERSHIP
by News Corp., with more than 4 million subscribers. This media conglomerate
also holds considerable ownership of British Sky Broadcasting (BSkyB), U.K.s largest digital pay TV platform, and Germanys leading Sky Deutschland,16a leading
broadcaster of sports, movies, entertainment and news in Germany.
42
Implications of media ownership concentration

The general pluralistic perspective on media concentration is that concentration provides a risk for media bias that can curtail the representation of a wide range of groups
a detrimental impact upon democratic representation. Hence, from this perspective,
it is important to consider the number of media owners or controllers when stressing
the importance plurality in the choice of information. Concentration can also give way
to market monopoly or oligopoly. In this scenario, a large market player can tarnish the
media market either by preventing new entrants into the market place, or by driving
out weaker competitors. In addition, mergers and integration often mean cost cutting or closing down media outlets all of which are negative consequences of media ownership concentration. Alison Harcourt notes that cost cutting often leads to a
standardisation in media content, rather than diversification,17 which also leads to a
decrease in the variation and quantity of information sources.
43
Pluralism is neither a basic right nor a human right. However, according to EU principles enshrined in the Green Paper, it is possible in the name of pluralism to refuse a
broadcasting license or permission for the takeover of a newspaper, a monolithic corporate structure, a holding in a media company.18 Having more owners in the media
market, hence reducing media concentration, constitutes a minimum of the diversity
of choice offered to the public.19 In order to avoid the influence or abuse of one dominant opinion forming power, governments have drafted many legislative and policy
documents for the purpose of guaranteeing diversity of information for the public.
44
45
THE EU APPROACH TO MEDIA OWNERSHIP CONCENTRATION

Ever since the adoption of the Single European Act in 198520, the European
Union has played a significant role in the regulation of European media markets
1946
The News Corp. also has significant holdings in Asians TATA Sky and FOXTEL in Australia and New Zealand, News Corporation, http://www.newscorp.com/operations/
publishing.html (accessed 15 February 2012).
16
Harcourt, Support for Regulation and Transparency of Media Ownership and Concentration Russia.
17
18
EC Green Paper, 1992, p.15.
19
Ibid., p.19.
The Single European Act launched the single market programme in the European
Community (European Union).
20
308
47
Overview of the main actors in the application and enforcement of EU

competition policy
The area of competition policy in the EU is vested within the Commission, which
plays a central role in the enforcement of the competition rules with the power
to act on its own initiative or after a complaint has been filed by a Member State
or a private actor. With the power of keeping checks and balance, the Commission fulfills the role of executer, judge and even legislator, and can take decisions
without interference by the European Parliament or the Council of Ministers.22
Nevertheless, the responsibility for the control of media concentration rests primarily with the national competition authorities of Member States, which retain
the right to issue national laws on media ownership as recognized by Article 21
(3) of the European Community Merger Regulation (ECMR)23 in order to protect national interest.24 In this case, EU Directives are produced by the Commission and
implemented by Member States25 while the Commission oversees its implementation. Even though the Commission has the power to enforce competition rules if
Member States do not follow EC Treaty provisions, each Member State is given the
right to make its own rules according to its media market needs as long as it does
not derogate from the principles of an open and competitive market.
48
49
50
51
Apart from the Commission, Community Courts also act as important actors in
the enforcement and application of EU competition policy since all decisions
concerning competition are subject to judicial review. The competence to
Four basic types of Commission statutory laws exist: Directives, Recommendations,
Resolutions and Decisions. Each law is produced by the Commission and ratified by the
Council of Ministers and the European Parliament. See Harcourt, Support for Regulation
and Transparency of Media Ownership and Concentration Russia.
21
Pauwels, Caroline, EU Competition Policy and Concentrations in the Media Sector, http://
www.cem.ulaval.ca/pdf/UnionEuropeenne.pdf , p.2, (accessed 7 December 2011).
22
Council Regulation on Control of Concentrations between Undertakings The 1989

Merger Regulation, Official Journal L 395, entered into force 21 September 1990 (EC) No
4064/89, (Brussels, 21 December, 1989).
23
One of these national interests referred to as legitimate interests in the 1989 EC

Merger Regulation is media pluralism. See: Ibid., Article 21 (4).
24
It is important to distinguish among the different types of laws available in the EU:
among Directives, Regulations are laws which are immediately incorporated into national law, while recommendations and resolutions are policy suggestions without any
legal obligation towards Member States.
25
309
through the European Commission (hereafter: Commission) statutory and competition laws.21 The peculiarity of the EU competition policy governing media
ownership concentration is that it is situated within a multi-level political and
legal system, which encompasses both the different EU institutions and the 27
EU Member States.
MEDIA OWNERSHIP
review the legality of Commissions competition decisions has been given to the
Court of First Instance since its establishment in 1989. The primary role of this
court is to provide a point of reference for ensuring correct interpretation of
Treaties and Community legislation.26
52
Policy instruments for media ownership concentration

Control mechanisms for media concentration vary between Member States.
However, the EU has set up particular provisions as policy instruments in order
to deal with media concentrations which have shaped national policy-making.
Such instruments include:

EC antitrust provisions contained in the EC Treaty; Article 81 on restrictive

practices, Article 82 on monopoly or abuse of a dominant position, Article
86 on public service, and Article 295 on competence of ownership.
The 1989 Merger Regulation (revised in 1997 and 2004).
EC Antitrust provisions
Several of the EC Treaty articles deal with competition and aim to safeguard a
competitive single market, but are also of vital importance for highlighting issues concerning media concentration.
Article 81 of the EC Treaty is the first provision under Rules on Competition
prohibiting agreements and joint practices among undertakings that prevent
or distort competition in the market:
all agreements between undertakings, decisions by associations of undertakings
and concerted practices which may affect trade between Member States and which
have as their object or effect the prevention, restriction or distortion of competition
within the common market.27
53
On the other hand, Article 82 of the EC Treaty makes it clear that the abuse of a
dominant position by one or more undertakings is incompatible with the common market, as it can negatively affect trade relations among Member States.28
There is a fear that this can lead to a monopoly of a dominant company, and that,
once a dominant company gets hold of this power, it could engage in abusive
practices such as unfair pricing, limits to production or allowing competitive dis54
Pauwels, Caroline, EU Competition Policy and Concentrations in the Media Sector, http://
www.cem.ulaval.ca/pdf/UnionEuropeenne.pdf p.2 (accessed 8 January 2011).
26
European Union Consolidated Version of the EC Treaty (Brussels, 29 December 2006),

Article 81, p.73. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:32
1E:0001:0331:EN:PDF (accessed 8 January 2011).
27
28
Ibid., Article 82, p.74.
310
55
Moreover, Article 86 of the EC Treaty states that undertakings that perform services of general economic interest are only subject to the rules contained in the
Treaty, in so far as this does not obstruct the performance of these services.30
However, the meaning of general terms included in this article, such as general
economic interest is unclear and leaves room to interpretation.31
56
57
Lastly, Article 195 of the EC Treaty clearly declares that ownership rules fall within
the competence of Member States: shall in no way prejudice the rules in Member
States governing the system of property ownership. As mentioned earlier, even
though the Commission retains the power of checks and balance when enforcing competition rules, each Member State has the liberty to formulate its own
rules according to its internal open market needs.
The Merger Regulation (adopted in 1989 and revised in 1997 and 2004)
The EC Merger Regulation (ECMR) lays down the conditions under which the
Commission or the National Competition Authorities (NCAs) have jurisdiction
over concentration issues. It was produced out of a need for a specific media
concentration-regulation since the EC Treaty did not provide a specific provision
for controlling mergers and its competition provisions proved insufficient to
control concentration.32 Consequently, the Commission could only act a posteriori against certain cases of concentration and cases on the basis of Articles 81
and 82 of the EC Treaty.33 As this obviously undermined its capability to ensure
free competition in the common market, the Commission has striven to obtain a
priori control over concentrations since 1972.34 However, those mergers without
a Community dimension fall within NCAs jurisdiction in accordance with their
58
59
60
The Council of Europe: Control of Concentration between Undertakings the Merger

Regulation (Brussels, 21 December 1989), Official Journal L 395, entered into force 21
September 1990 (EU) No. 4064/89.
29
30
Ibid., Article 86, clause 1, p.76.
Koenig, Christaian, Bartosch Andreas and Braun Jens, Daniel (eds.), EC Competition and
Telecommunications Law. The Hague: Kluwer Law International, 2002, p.202.
31
See: EC Merger Regulation, 2004, point 7: Articles 81 and 82, while applicable, according to the case-law of the Court of Justice, to certain concentrations, are not sufficient to
control all operations which may prove to be incompatible with the system of undistorted competition envisaged in the Treaty.
32
33
Pauwels, Caroline, EU Competition Policy and Concentrations in the Media Sector, p.2.
Cited in Pauwels, Caroline, EU Competition Policy and Concentrations in the Media Sector, p.4, footnote 3.
34
311
advantage. This provision clearly reflects EUs commitment and concern towards
media concentration issues that, if exploited, could be a detriment to competition
itself. Thus, the EU legal system directs its Member States to take into account media concentration issues when it comes to formulating national laws.29
MEDIA OWNERSHIP
domestic merger control rules.35 A priori control means that the Commission or
NCAs have exclusive prerogative over deciding on proposed mergers by pronouncing on mergers beforehand.
61
For this reason, this regulation is regarded as the only instrument applicable to media ownership monopolies that may significantly impede
effective competition, particularly through the creation or strengthening
of dominant positions, 36 that is deemed incompatible with the common
market.
62
B-H LEGAL MEDIA OWNERSHIP FRAMEWORK

As an aspiring EU Member, BosniaandHerzegovina hasadopteda marketorientationbased on the principles offree enterpriseand has been active in incorporating EU laws regarding the issue of concentration by establishing new laws
and building new instruments capable of dealing with concentration issues that
sustain an open and competitive market economy.
As is often the case in countries in transition, B-Hs media market is also in its
developing stage from a socialist closed-model market economy to a privatized market that introduced lower barriers to trade and free competition.
Moreover, the transformation in the B-H market economy is coupled with
complex political and administrative structures, which resulted in limited media legislation. This is reflected in the weak, not to say insufficient, legal and
self-regulatory framework and institutions.37
63
Actors and policy instruments for B-H ownership concentration policy

The area of competition policy in B-H is vested within the B-H Council of
Competition (hereafter: Council of Competition). The Council of Competition
was established in 2004 as an independent public body entrusted with the
responsibility of ensuring the consistent implementation of the 2001 Act on
Competition. Its exclusive competence rests in deciding on the presence of
Summary of national rules of Member States can be found at the following link:
http://www.slaughterandmay.com/media/64572/the_ec_merger_regulation.pdf (accessed on 15 February, 2012).
35
Council Regulation on Control of Concentration between Undertakings The EC Merger

Regulation, Official Journal L 24, entered into force 29 January 2004 (EC) No 139/2004,
(Brussels, 20 January, 2004), points 6 and 24, p.1 and p.3.
36
Jusi, Tarik, Bosnia and Herzegovina, in Media Ownership and its Impact on Media
Independence and Pluralism, http://www2.cji.ro/userfiles/file/documente/04_Ownership_BIH.pdf, p.62 (accessed on 15 February, 2012).
37
312
64
65
B-H Act on Competition and Council of Competition

For the first time, the Act on Competition (hereafter: Act) established a competition policy as one of the most important instruments and pillars in the
creation and strengthening of the single free market in B-H that was applicable on the whole territory of B-H. The Act on Competition passed in 2001
and contained basic rules of the EC Antitrust provisions - namely, Article 81
and 82 of the EC Treaty. However, the Act did not apply to practices and
resolutions of the modern European legislation, the acquis in this field.40 In
response to this, a new Act on Competition was passed and has been in effect
since July 27, 2005.41
66
67
The new Act accommodates stipulations and regulations of EU legislation in

the field of market competition (i.e. EC Merger Regulations). The Act discusses important issues, such as the abuse of dominant position,42 the definition
of concentration,43 and naming the responsible body for promoting and protecting a competitive market in B-H, the Council of Competition.
68
69
This Act regulates the rules, measures and procedures for the protection of market
competition, as well as the power and duties of the Council of Competition entrusted with the protection and promotion of market competition in Bosnia and
Herzegovina.44
70
In sum, the Act ensures the effective and transparent application of the
proceedings and in general, reduced level of the state intervention in this field.45
71
See: BiH Council of Competition, http://www.bihkonk.gov.ba/en/index.html (accessed

13 February 2012).
38
Decision of the High Representative to establish the CRA, http://www.rak.ba/eng/index.

php?uid=1272017637 (accessed 15 December 2011).
39
BiH Council of Competition, http://www.bihkonk.gov.ba/en/index.html (accessed 13

February 2012).
40
Act on Competition (Sarajevo, 29 June, 2005), Official Gazette BiH No. 48/05, entered
into force 27 July 2005.
41
42
See: Ibid., Article 10 and 11.
For further details on the allowed mergers/acquisitions among undertakings see Act
on Competition, 2005, Article 12.
43
44
45
Supra note 52.

313
prohibited competition activities in the market of B-H.38 Furthermore, the

independent Communications Regulatory Agency (CRA), established by the
Communication Law of B-H, deals with the regulation of media concentration
issues in B-H.39 The CRA enforces rules and regulations within the media market - namely, broadcasting and telecommunications sectors.
MEDIA OWNERSHIP
Hence, B-H follows an EU legal framework in this field. According to the rules
within the competition policy, the Council of Competition has the authority to
enforce the Act and holds exclusive jurisdiction in determining the presence
of anti-competitive activities in the market, similar to the role of the European
Commission. The Councils decisions are binding on the entire territory of B-H.46
72
The Communications Regulatory Agency (CRA) and its instruments

The CRA is the primary actor for regulating concentration issues in the broadcasting and telecommunications sectors and, at the same time, is committed to
the protection of freedom of expression and diversity of opinion while respecting
generally accepted standards of decency, non-discrimination, fairness, accuracy,
and impartiality.47 From the following rules and policies, it can be noted that
the EU principles of media pluralism, freedom of expression and free competition are incorporated into B-H law as primary regulatory principles.
73
It is important to discuss the policies regarding the B-H broadcasting sector48

and its objectives. One of the guiding principles of the broadcasting sector is
the control of media concentration and the protection of pluralism as a result of
a boom in media communications.49 At the same time, it strives to ensure a free
and open competitive market environment by promoting minimum regulation
of the broadcasting sector50 in order to allow the sector to deliver the best quality services at low prices. In the case of electronic communications, the sector
policy granted the CRA the a task of eliminating any kind of monopoly and regulation and to promote competition in the use of electronic communications and networks and the provision of electronic communication services.51
74
75
76
77
A specific rule on media concentration and cross-ownership52 was formulated

in late 2003 by the CRA for electronic and print media. The rule formed an integral part of the B-H Communication Law, offering clear criteria for the prevention
78
See Supra note 53, Article 40 (2). As some items and matters on competition are defined in general by the Act on Competition, the Council of Competition has drafted several by-law acts (decisions) which closely define certain matters separately. For more information see BiH Competition
Council Laws, http://www.bihkonk.gov.ba/en/index.html (accessed 13 February, 2012).
46
47
Ibid., Article 4, point 1(a).
Translated title: Broadcasting sector policy of BiH, http://rak.ba/bih/index.

php?uid=1269441148 (accessed 5 December 2011).
48
49
Ibid., Article 1, clause 2, p.2.
50
Ibid., p.3.
51
Ibid., p.7.
Translated title: Rule No. 21/2003 Concentration and Cross-ownership Over Electronic
and Print Media, http://www.rak.ba/bih/download.php?name=pravilo_21/2003_o_
medijskoj_koncentraciji_i_vlasnistvu_nad_elektronskim_i_stampanim_
medijima_&file=1270642082.pdf&folder (accessed 5 December 2011).
52
314
79
As such, this rule stipulates that media part-owners are only allowed a limited
share of 10 per cent of ownership; surpassing that limit would be considered
as an impermissible concentration. The rule also states that private persons or
legal entities cannot be an owner of two or more radio or TV stations that reach
the same audience.54 However, the rule for print and electronic ownership is reversed, allowing one or more private person or legal entity that already holds
ownership of print media to take ownership of an electronic media.55
80
81
The rule came into force on April 1, 2004; however, its validity was short-lived
because a new rule was not developed within the eighteen-month validity timeframe. Up until now, the CRA did not provide any legal regulations defining media ownership and concentration, illustrating the weak regulatory framework on
concentration issues.

GROWTH OF CONCENTRATION AND DIVERSITY OF OPINIONS
The information and opinions in a given media market must reflect a range of
different voices and views, hence, provide a plurality of information and opinion, in order for the public to understand an issue that is presented through the
media. Through plurality, consumers and citizens are given an opportunity to
choose among different views a necessary condition for a free and open democratic society. Ensuring plurality in the media also keeps competition thriving,
as it encourages the media to provide the most diverse opinions and quality
content, a common goal both for the EU and B-H as it can be observed through
their competition policy instruments.
Competition laws have been applied to ensure plurality in the media due to a
fear that a media market with fewer owners may result in less variety of opinion
and content. While it is self-evident that media mergers reduce the number of
owners ultimately controlling that media, having more media firms does not
necessarily result in an increased variety of content or opinion, but rather in
more of the same. The EU media market has witnessed the increase in major media conglomerates, fewer, but larger companies that comprise of many smaller
53
Ibid., p.1.
54
Ibid., Articles 1 and 2.
55
Ibid., Article 3.
315
of ownership concentration in the media market. Furthermore, the need to ensure pluralism in the media is also asserted in the Preamble of this rule, stating
that the rule supports the efforts of society that is constantly seeking increased
pluralism of content, where the plurality of ownership is the first requirement for
pluralism.53
MEDIA OWNERSHIP
firms operating within a conglomerate across national borders. The speed and
spread of integration has allowed access to more information and diversity of
sources more than ever before.
As for policy instruments, B-H had made progress towards harmonizing its laws
with EU standards and principles on media ownership concentration by formulating the Competition Act and a body that has clear authority over its implementation. However, the most recent findings put in the CRA Report from 2006
on the Review of the Communications Sector in B-H and Harmonization of EU
Standards on the issue, notes that the media market in B-H, does not look too
concentrated, but rather, as a result of post-war situation, it is fragmented by the
presence of numerous small and medium-sized operators.56
82
Even though the media market in B-H is not too concentrated, B-H regulatory
authorities need to ensure greater commitment in creating a more concrete and
responsive legal framework regarding to concentration issues. If this issue is neglected, they could cause negative consequences to its media market that is
developing in a post-war environment, where the media plays a very important
role in everyday life of ordinary consumers and citizens who depend on credible
and transparent information.
Overview of the Communications Sector in Bosnia and Herzegovina: Harmonization with

the EU standards and the role of the Communications Regulatory Agency, CARDS Project of
cooperation, 2006, p.71.
56
316
Mladen SRDI attended the Second High School in Sarajevo and graduated
from the Faculty of Law in Sarajevo in 1985. From 1990 to 2003, he served as a
judge in the citys Municipal Court, where he worked on civil procedures and uncontested procedures. In 2004, he became a judge in the citys Cantonal Court
dealing with civil procedures of second instance until February 2007, when he
became a judge of the Supreme Court of Federation of B-H at the Department
of Administration. He gave many lectures organized by institutions in Bosnia
and Herzegovina and abroad, speaking about civil law and the application of
the European Convention of Human Rights and Fundamental Freedoms. He also
authored numerous articles on the protection of freedom of expression.
Sevima SALI-TERZI graduated from the Faculty of Law in Sarajevo in 1983 and
passed the bar exam in 1988. She is currently a senior legal advisor at the Constitutional Court of B-H. She has worked as a lawyer and director in the organization
Global Rights-Partners for Justice B-H program; as a legal adviser in International
Human Rights Law Group and ABA CEELI; as a judge in the Municipal Court of Sarajevo; as a consultant for projects by the Council of Europe, UNDP, USAID; and is currently serving as an external consultant for the Foundation Center for Public Law.
Between 1998 and 2000, she was a member of the FOD Legal Center in Sarajevo
and a member of Managing Board in Human Rights & Governance Grants Programs
in Budapest. She has also lectured at Mediacenter Sarajevos School of Strategic
Communication and on seminars about the application of the European Convention before domestic courts. She co-authored the book International documents
on human rights instruments of the Constitution of the Federation of B-H (Center
of Law in Sarajevo, 1996), and wrote the studies Strengthening the integrity of legislature through advancement of the approach to justice (UNDP, 2011) and Much
wrangling about Bosnia and Herzegovinas next constitution but little real debate
(Europes World, 2007). Sevima has also co-authored numerous studies, notably:
International policies of support to countries of South-East Europe lessons (non-)
learned in B-H (FOD B-H, 2002), Women and the media (B.a.B.e., Zagreb, 2005), Assessment of democracy in B-H (FOD B-H, 2005), Study of compatibility of laws and
practices of B-H with the requirements of convention of human rights (Council of
Europe, 2006), and Strategies of exclusion: hate speech in B-H public (Mediacentar
Sarajevo, 2010).
Mirjana NADADIN-DEFTERDAREVI has been working as an associate professor at the Law Faculty of University Demal Bijedi in Mostar since 2006. She
317
AUTHORS
AUT H O R S
AUTHORS
teaches introduction to the study of state and law, theory of law, human rights
law, media law and rhetoric. Her academic work focuses on the theory of law and
human rights. She has written four books: the monography Right to information
in societies in transition with a special reflection on countries of former Yugoslavia
(2004), and the textbooks Media law: necessity of limited freedom (2006), European Convention according to practice of the European Court of Human Rights
(2007), and the Introduction to rhetoric (currently printed). She co-authored the
publication Promotion of reform of the system of child protection at central and
local level in B-H (2006) and the practicum Human rights (2009). She has also
published more than 20 scientific and professional papers and she participated
in several research projects. Along with her academic work, she is actively involved in projects of international and local non-governmental organizations
which promote civil society, human rights and democracy.
Libby MORGAN she received an MA in International Relations, with a concentration in Media and Communications, from Columbia Universitys School of International and Public Affairs in 2006. Libby worked as the Associate Director at
the Annenberg School of Communications until March 2012. At Annenberg, she
supported the development, planning and administration of all CGCS activities,
including research efforts, policy work, conferences, and training programs. She
still works on the Centers publication initiatives, including the publication of
Measuring Press Freedom;Broadcasting, Voice and Accountability; andOwning the
Olympics: Narratives of the New China.
Helena MANDI started her career in media law as a deputy of the Head of the
Legal Department of Independent Media Commission, later called the Communications Regulatory Agency, in 1998. Over the years, Helena held different positions in the Agency, becoming the Assistant Director of the Broadcasting Sector
in 2010. She was involved in the creation of all regulatory acts at the Agency in
the field of broadcasting. Helena was also a member of the team representing
Bosnia and Herzegovina before the Home of Human Rights in cases involving
the Agency, at that time still the Independent Media Commission. Her experience in media law also includes participating in the creation of the Press Code
and working in mixed working groups (OSCE, OHR, IMC) to draft the Law on
Protection against Defamation and to write the Freedom of Access to Information
Act. Helena was also a member of a team of experts in negotiations about the
Stabilization and Accession Agreement and on the B-H team on the Sub-Committee for Innovations, IT Society, Social Policy and Public Health. Helena regularly represents the Agency on meetings of European Platform of Regulatory
Bodies, Mediterranean Network of Regulatory Bodies, Standing Committee for
318
Vanja IBRAHIMBEGOVI-TIHAK holds an MA in Human Rights and Democracy

in South East Europe, a joint program between Sarajevo and Bologna universities. Vanja
is the Institutional Development Expert in Internews B-H. Before
coming to Internews, Vanja worked as a news reporter for BHTV and has been active
in the non-governmental sector in B-H in the fields of human rights, education
and media for the past seven years. Vanja was also the Editor-in-Chief of New
Perspectives, a quarterly magazine issued by ACIPS, a think-tank in B-H promoting human rights and the development of democracy.
ejla JUSUFOVI attended the International School in Libya and studied at
Eastern Mediterranean University in Northern Cyprus, where she graduated with
high honor in International Relations. In 2006, she began studying for a masters
at the University of Bologna, where she majored in International Relations and
Politics and graduated in Interdisciplinary Studies on South-East Europe. During her MA studies, she spent eight months at the University of Marmara in Istanbul, where she conducted research for her thesis on Turkish army and the
path towards European Union. ejla worked for the OSCE in B-H in the Department for Security Cooperation. She also served as an assistant for political and
military issues in ACIPS working as an elections observer. During this time, she
also worked as a freelance analyst and a member of the Internews SIM team.
As part of the SIM team, she did research and provided support in monitoring
and evaluating the SIM project. She speaks fluent English, French, Turkish, and
Arabic, and has working knowledge of Italian.
Mehmed HALILOVI is the Legal Advisor in Internews B-H. For over three
decades, he has contributed to the development of the B-H media sector as
a journalist and as an ombudsman for media in the Federation of Bosnia and
Herzegovina for over ten years. From 1978 to 1983, Mr. Halilovi was a full-time
Middle East correspondent based in Cairo. After his work abroad, Mr. Halilovi
worked as a commentator for the Bosnian daily Osloboenje from 1986 to 1994,
and served as the papers editor of international news from 1983 to 1988. In
1994, he was appointed Editor-in-Chief and worked as such until 1999. In addition to his work at Osloboenje, Mr. Halilovi has published articles in leading international newspapers from Switzerland, Sweden, Germany, Saudi Arabia and
319
AUTHORS
Transfrontier Television, European Audiovisual Observatory and other international forums. She participates in the annual international competition for law
students, Monroe E. Price Media law Moot Court Programme, organized by the
Program for Comparative Media Law and Policy at the University of Oxford.
AUTHORS
the UAE. As an ombudsman, he used his rich experience in journalism and law
(he graduated from the Law Faculty in Sarajevo in 1996) to amend old laws on
public information and to promote and monitor new laws on freedom of expression, protection against defamation, and free access to information. Mr. Halilovi
was the first president of the Independent Union of Professional Journalists established in 1994 and was Chairman of the Board of the Soros Foundation in
Sarajevo from 1996-1998. He has won many professional awards in Bosnia and
Herzegovina and in former Yugoslavia, including Osloboenjes August 30th
award for life achievements in 2000, the Bob Baker of International Federation
of Journalists Award for successfully running Osloboenje during the war, and
the Independent Union of Professional Journalists of B-H Award in 1997. Mr.
Halilovi has been a trainer in numerous courses and workshops for journalists
and public officials in B-H and the region. He is also an active participant in many
local and international conferences on media, ethics in journalism, and professional education.
Amer DIHANA holds a BA and MA degrees in journalism and communication
from the University of Sarajevo, an MA in Public Policy from Central European
University (CEU) with a specialization in Media, Information and Communications Policy Stream, and is a PhD candidate at the University of Sarajevo. He
is Director for Research and Advocacy for Internews B-H.Before coming to Internews, he served as the manager at the Center for Media Policy at Mediacentar Sarajevo. Together with Zala Voli, he edited the book Media and national
ideologies: analysis of reporting on trials for war crimes in former Yugoslavia. He
has published several works, including: Spinning out of control: Media coverage
in the Bosnian conflict with Michal Sladeek, Public RTV system in B-H with Tarik
Jusi, and a policy study called RTV system in B-H between ethnic exclusivity and
long-term stability. As a research fellow from B-H, he participated in several international projects including Mapping Digital Media, a study conducted in 60
countries, and INDIREG, a study on independence and the efficiency of regulatory bodies in charge of implementing AVMS Directive.
320
Annex 1
OVERVIEW OF THE CRA DECISIONS REGARDING
COMPLAINTS ON CONTENT
321
322
Date
Station
4/2/99
RTV Sveti
Georgije
Violating IMC Code on Editing Radio-Televi1000 KM fine

sion Program, Article 1.1.
4/2/99
HRP Mostar

4/2/99
NRTV 99
Violating IMC Code on Editing Radio-Televi- Decision of Implesion Program, Article 1.4.
mentation Board
4/2/99
Radio Srpsko
Sarajevo
Violating IMC Code on Editing Radio-Televi- Decision of Implesion Program, Article 1.4.
mentation Board
Case description
Decision
14/4/99 Kanal S
Violating IMC Code on Editing Radio-Televi- Broadcasting

sion Program, Article 1.1.(2).
suspension
13/5/99 Erotel

13/5/99 RTV Srebrenica Violating IMC Code on Editing Radio-Televi800 KM fine

13/5/99 RTV Sveti
Georgije

13/5/99 Radio Srpsko

Sarajevo

sion Program, Article 1.1(1) and (2)
13/5/99 RTV B-H
Violating IMC Code on Editing Radio-TeleviWarning

13/5/99 NRTV 99

13/5/99 RTV Mostar

14/6/99 SRT

sion Program, Article 1.1(2)
8/7/99
Radiopostaja
Drvar

8/7/99
Kanal S

8/7/99
TV 101

12/7/99 SRT
13/8/99 Erotel
30/9/99 Radiopostaja
Drvar
DG order to read the

statement
DG order to read the

statement
Violating IMC Code on Editing Radio-Televi- Broadcasting

suspension
15/10/99 Hrvatska radio- Violating IMC Code on Editing Radio-Televi- Broadcasting

postaja Mostar sion Program, Article 1.1.
suspension
323
DECISIONS RELATED TO THE COMPLAINTS ON PROGRAM CONTENT 1998-2001
Table 1: Decisions related to the complaints on program content 1998-2001
OVERVIEW OF THE CRA DECISIONS REGARDING COMPLAINTS ON CONTENT
22/10/99 Radiopostaja
Drvar
DG order to read
the statement
27/10/99 Hrvatska radio/

postaja Mostar
DG order to read
the statement
10/11/99 Radio Doboj
Violating IMC Code on Editing RadioTelevision Program, Article 4.1.
Warning
24/11/99 Hrvatska RTV

Herceg Bosna
Violation of IMC of the Code o editing radio

5000 KM fine
and television program Article 1.
13/12/99 NRTV Banja

Luka
11/5/00 NTV Hayat

11/5/00 RTV USK

9/6/00
Radio Fern
19/6/00 RTV B-H

19/6/00 OBN
6/7/00
NTVD AD
Doboj
7/9/00
Kanal S
Violating IMC Code on Editing RadioTelevision Program, Article 1.1. (1)

7/9/00 RTV Srebrenica Violating IMC Code on Editing RadioTelevision Program, Article 1.4.
16/10/00 Kanal S
25/10/00 NTV Studio
Violating IMC Code on Editing RadioArena
Television Program, Article 4.1.
25/10/00 Radio Zvono
25/10/00 TV epe
7/11/00 HRTV Herceg
Bosna

1000 KM fine
400 KM fine
900 KM
500 KM fine
1000 KM fine
300 KM fine
300 KM fine
5000 KM fine
1000 KM fine
Broadcasting
suspension
Warning
Warning
Warning
1000 KM fine
7/11/00 Hrvatska radio- Violating IMC Code on Editing Radiopostaja Mostar Television Program, Article 1.4.
1000 KM fine
7/11/00
HTV Mostar
8/11/00
Radio Kalman
8/11/00
Radio Studio
88
Warning
8/11/00
RTV B-H
1000 KM fine
324

1000 KM fine
Warning
RTV Step
400 KM fine
17/5/01
TV Simi
1000 KM fine
17/5/01
TV Gvozden
400 KM fine
17/5/01
RTV
Tomislavgrad
1000 KM fine
17/5/01
Hrvatska
radiopostaja
epe
RTV Sveti
Georgije
600 KM fine
Broadcasting
suspension
17/5/01
17/5/01
HTV Mostar
Broadcasting
suspension
17/5/01
Radio BestGrude
800 KM fine
27/7/01
RTV Sveti
Georgije
Violation of EP order regarding the

suspension of broadcasting
Revocation of the
license
325
DECISIONS RELATED TO THE COMPLAINTS ON PROGRAM CONTENT 1998-2001
8/2/01
Table 2: Overview of violations of the Code 2002-2010
Date
Station
07.02.02.
NRTV Banja Code on Editing Radio-Television Program, Article

1000 KM
1.2.
Luka
Case description
Decision
07.02.02. Radio Naba
Code on Editing Radio-Television Program, Article

1000 KM
1.1, 1.2., 1.4
07.02.02. RTRS

1.4 ;
5000 KM
CRA Rule 02/1999 Respecting the copyright
07.02.02. TV Bel

1.2.
1000 KM
07.02.02. TV Vikom
16.05.02.
400 KM
NRTV Banja Code on Editing Radio-Television Program, Article

1000 KM
1.2.
Luka
16.05.02. TV Bel

1.2.
1000 KM
17.06.02. RTV FBiH

1000 KM
1.2., 1.6,
05.09.02. RTV FBiH

1000 KM
1.4
22.11.02. RTRS

5000 KM
1.2
22.11.02. RTV FBiH

1.4., 2
3000 KM
22.11.02. RTV HIT
22.11.02. TV BEL
CRA Rule 02/1999 Respecting the copyright;

License suspenCode on Editing Radio-Television Program, Article sion for 30 days
4.1
06.02.03. TV Kanal 3
Violation of provisions related to copyright
22.05.02.
Radio
Kalman
200 KM
200 KM
Article 4.1 Videos of programs of the Code and

Warning
Articles 8.2.1, 8.2.2 and 15 of Conditions for License
22.05.02. TMK Radio
Article 4.1 Videos of programs of the Code and

Articles 8.2.1, 8.2.2, 15 and 17.1 of Conditions for
License
22.05.02. RTV FBiH
Article 1.4. Fair and impartial editing of programs

5 000 KM
of the Code
18.11.03. PBS
25.09.03. Radio eFM
326
Article 1.2. Decency and civility of the Code

Article 4.1. Videos of programs of the Code i
Articles 8.2.1, 8.2. of Conditions for License
200 KM
Warning
Warning
Violation of provisions related to copyright
Pink BH
08.03.04.
Company
Violation of conditions for license, Code on

broadcasting RTV program in the sense of relevant
500 KM
provisions on copyright and 02/1999 Respecting
the copyright
08.03.04. RTV Alfa
Violation of the Code on broadcasting RTV program, Article 4.1 Videos of programs, and the
400 KM
conditions of a long-term License for broadcasting
(Articles 8.2.1, 8.2.2).
OVERVIEW OF VIOLATIONS OF THE CODE 2002-2010
25.09.03. RTRS
5 000 KM
Violation of Rule 02/1999 Respecting the copyright, Article 6 of General license conditions and
27.05.04. MTV Igman
500 KM
the Code on broadcasting RTV program, paragraph
5 of Preamble.
27.05.04. MTV Igman
Violation of Article 1.1 General, of the Code on Edit1000KM

ing Radio-Television Program
27.05.04. RTV Alfa
Violation of Article 1.2 Decency and civility of the

4.1 Program videos of the Code on Editing Radio- 6000KM
Television Program and 1.1 General, as well as the
License conditions (Articles 8.2.1 and 8.2.2).
27.05.04.
RTV
Vogoa
Violation of Article 1.1. General, of the Code on

broadcasting RTV program. disputable program 1000KM
Sacrifice
16.09.04.
NRTV
Studio 99
Violation of Article 1.2 Decency and civility of the

Code on broadcasting RTV program program
1000KM
with offensive content on RTV Alfa
16.09.04.
Pink BH
Company
Violation of the Code on broadcasting RTV program Article 1.2 Decency and civility 1.3 Limitations 5000KM
related to broadcasting time
16.09.04. RTRS
Violation of Articles 1.5 Fair and impartial editing of

programs and 1.7 False and deceiving material, 6000KM
of the Code on broadcasting RTV program
16.09.04. TV Bel
Violation of License conditions, Article 1.2 Decency and civility and Article 1.3 Limitations related
to broadcasting time of the Code on broadcasting 1000 KM
RTV program. broadcasting a movie with inappropriate content at inappropriate time
Violation of Article 1.1 General, Article 1.2. Decency

and civility, as well as the provisions of the Rule11.11.04. Radio Gacko book on media representation of political subjects 2000KM
in time of elections (Rulebook), Article 1.General
provisions
327
11.11.04. TV Simi
Violation of Articles 1.1 General, 1.2 Decency and

civility of the Code on broadcasting RTV program;
Article 1. General provisions; Article 3. Fair and equal
representation, Article 5. Paid political advertising; 10,000KM
Article 4 Direct addressing of the Rulebook on
media representation of political subjects in time
of elections.
NRTV
22.12.04.
Studio 99
Violation of Article 1.2 Decency and civility, of the

Code on broadcasting RTV program. broadcast2000KM
ing program about Fahrudin Radoni and Avaz,
published by daily newspaper San.
22.12.04. RTV Alfa
Violation of Articles 4.1 Videos of programs, 1.1

General and 1.4 Religion of the Code on broadcasting RTV program, and Articles 8.2.1 and 8.2.2 of
50,000KM
General license conditions disputable program,
failure to submit videos of programs.
22.12.04. RTV FBiH
Violation of Article 1.5. Fair and impartial editing

of programs and Article 2.1. Right to response of
5000KM
the Code on broadcasting RTV program Vakufska
Bank case
30.03.05. Radio 202
Violation of provision of Article 1.2 of the Code on

2000 KM
broadcasting RTV program.
30.03.05. RTV FBiH

Warning
24.05.05. Radio Naba
Violation of Article 1.1 General and Article 1.4 Reli20,000 KM

gion of the Code on broadcasting RTV program.
24.05.05. RTRS

broadcasting RTV program, due to broadcasting 20,000
TV program
24.05.05. TV OBN
Violation of provision of Articles 1.2. and 1.3. of the

5000 KM
Code on broadcasting RTV program
24.05.05. RTV OSM
Violation of provisions of Articles 8.2.1. and 8.2.2. of

General license conditions, provision of Article 4.1.
Videos of programs, Article 1.5 Fair and impartial
5000 KM
editing of programs, and Article 1.3 Limitations
related to broadcasting time of the Code on broadcasting RTV program
20.10.05. RTV FBiH
Violation of provision of the Code on broadcasting

RTV program, Article 1.5 Fair and impartial report- 6000 KM
ing and Article 1.2 Decency and civility.
20.10.05. RTV FBiH
Violation of provision of the Code on broadcasting

RTV program, Article 2.1 Right to response, broad- 1000 KM
casting the program on 13 June 2005.
20.10.05. RTV BN
Violation of provision of Articles 1.5. Fair and

impartial editing of programs, and Article 1.7. False
5000 KM
and deceiving material of the Code on broadcasting RTV program
328
20.10.05.
NRTV
Studio 99
Violation of provision of Article 1.5 Fair and impartial editing of programs, of the Code on broadcast- 2000 KM
ing RTV program.
Violation of provisions 8.2.1. and 8.2.2. of General
license conditions and provision 4.1. Videos of pro- 2000 KM
grams of the Code on broadcasting RTV program
09.01.06. RTV BN
Violation of provision of the CRA Rule 02/1999

Respecting the copyright, Chapter II, Section A.
HRTV
09.01.06. KiseljakKISS TV
Violation of provisions of Articles 8.2.1. and 8.2.2. of

General License conditions and provision of Article
4.1. Videos of programs of the Code on broadcast- Warning
ing RTV program.
09.01.06. TV OBN
Fine in the
amount of 1000
KM
Violation of General license conditions of Article 5,

Fine in the
as well as of the CRA Rule 02/1999 Respecting the
amount of 6000
copyright.
KM
Violation of the Code on broadcasting RTV program, Article 1.2 Decency and civility.
Fine in the
amount of 5000
KM
08.02.06. TV OBN
Violation of the Code on broadcasting RTV program, Article 1.2 Decency and civility and Article
1.3 Limitations related to broadcasting time
Fine in the
amount of
30,000 KM
08.02.06. RTV Hit
Violation of the Code on broadcasting RTV program, Article 2.1 Right to response
Written warning
09.01.06. RTV FBiH
08.02.06.
Violation of the Code on broadcasting RTV proTV Kantona

gram, Article 1.3 Limitations related to program
Sarajevo
broadcasting
Oral warning
26.05.06. TV OBN
Fine in the
Violation of the CRA Rule 02/1999 Respecting the amount of
copyright, Section II, point A
3000KM
26.05.06. RTV TK
Violation of the Code on broadcasting RTV program, Article 1.2 Decency and civility
Written warning
26.05.06. RTV BN
Written warning
20.09.06. RTV FBiH
20.09.06.
NRTV
Studio 99
20.09.06.
Radio
Kalman
Fine in the
amount of 2000
KM
Violation of Article 1.2. Decency and civility of the

Code on broadcasting RTV program
Fine in the
amount of 2000
KM
Violation of Article 1.1. General of the Code on

broadcasting RTV program
Fine in the
amount of 1000
KM
329
Radio
20.10.05. Istono
Sarajevo
20.09.06. Radio Soli
Fine in the
Violation of Article 1.7 False and deceiving material
amount of 1000
of the Code on broadcasting RTV program
KM
20.09.06. RTV BN
Violations of the Code on broadcasting RTV

program, Article 1.5 Fair and impartial editing of
programs
Written warning
20.09.06. BHT 1
Oral warning
20.09.06. RTV Mostar
Oral warning
13.02.07. Radio 202
Violation of the Code on broadcasting RTV program, Article 1.2 Decency and civility, and Article
1.3. Limitations related to broadcasting time
Fine
10,000 KM
13.02.07. RTV Vikom
Violation of the Code on broadcasting RTV program, 4.1 Videos of programs
Written warning
23.05.07. TV Hit
Violation of the Code on broadcasting RTV program, Article 1.1. General
Fine
2000 KM
Radio
23.05.07. Istono
Sarajevo
Violation of the Code on broadcasting RTV program, Article 1.2 Decency and civility, and Article
1.3. Limitations related to broadcasting time.
Oral warning
23.05.07. TV Alfa
Violation of the Code on broadcasting RTV program, Article 2. Right to response
Oral warning
23.05.07. TV OBN
Written warning
23.05.07. RTV FBiH
Violation of the Code on broadcasting RTV program, Article 1.3. Limitations related to broadcasting Written warning
time.
23.05.07.
Violation of the Code on broadcasting RTV proAlternativna

Written warning
gram, Article 1.3. Limitations related to broadcasting
televizija
time.
23.05.07. NTV Hayat
Violation of the Code on broadcasting RTV proWritten warning

gram, Article 1.3. Limitations related to broadcasting
time.

23.05.07. RTV Mostar gram, Article 1.3. Limitations related to broadcasting
time.
23.05.07. HTV Oscar C gram, Article 1.3. Limitations related to broadcasting
time.
23.05.07.
Tuzlanska
televizija
Violation of the Code on broadcasting RTV program, Article 1.3. Limitations related to broadcasting Written warning
time.
24.05.07.
Tuzlanska
televizija
Violation of the Code on advertising and sponsorWritten warning

ship Article 14. Schedule of advertising on television.
24.05.07.
Alternativna Violation of the Code on advertising and sponsorWritten warning

televizija
330

24.05.07. HTV Oscar C

24.05.07. RTV Mostar

24.05.07. TV OBN
Violation of the Code on advertising and sponsorOral warning

24.05.07. TV BN
Violation of the Code on advertising and sponsorship Article 11. Parapsychology, exorcism, occultism Oral warning
and similar.
28.05.07. TV Simi

ship Article 5. Pornography and violence.
15.06.07. TV Kanal 3
Violation of provision of the CRA Rule 02/1999

Respecting the copyright, Chapter II, Section A
23.07.07. TVAlfa
Violation of the Code on advertising and sponsorship Article 8., Advertising and telemarketing of
certain products. Article 3. General principles of ad- Written warning
vertising, telemarketing and sponsorship, and Article
14. Schedule of advertising on television.
Fine 1000 KM
Violation of the Code on advertising and sponsorship Article 8., Advertising and telemarketing
Alternativna
23.07.07.
of certain products. Article 3. General principles Written warning
televizija
of advertising, telemarketing and sponsorship
paragraph 2
23.07.07. BHT1
paragraph 2
23.07.07 HTV Oscar C of certain products. Article 3. General principles Written warning
paragraph 2
23.07.07. NTV Hayat
paragraph 2
23.07.07. TV OSM
Violation of the Code on advertising and sponsorship Article 3, General principles of advertising,
telemarketing and sponsorship, Article 5. Pornography and violence, Article 11. Parapsychology,
Oral warning
exorcism, occultism and similar, Article 14. Schedule
of advertising on television and Article 16. Duration of advertising and telemarketing on private RTV
stations.
331
24.05.07. NTV Hayat
23.07.07. RTRS
Violation of the Code on advertising and sponsorship Article 8. Advertising and telemarketing of
certain products. and Article 3. General principles
Written warning
of advertising, telemarketing and sponsorship paragraph 2.
23.07.07. RTV FBiH
certain products and Article 3. General principles of Written warning
advertising, telemarketing and sponsorship paragraph 2.
23.07.07. RTV Mostar certain products. and Article 3. General principles
Written warning
NRTV
23.07.07.
Studio 99
23.07.07.
23.07.07.
Violation of the Code on advertising and sponsorship Article 14. Schedule of advertising on televiOral warning
sion and Article 3. General principles of advertising,
telemarketing and sponsorship
Tuzlanska
televizija
certain products. and Article 3. General principles
Written warning
Pink BH
Company
certain products and Article 3. General principles Written warning
paragraph 2.
13.08.07. TV OBN
certain products and Article 3. General principles of Written warning
advertising, telemarketing and sponsorship paragraph 2., Article 20. Prohibited sponsorship
16.08.07 Radio Foa
Violation of General conditions of license for terrestrial broadcasting of radio program, Article 7.3
Health and security measures and technical activi- Written warning
ties and Article 14.1. Respecting rules and regulations of the Agency
19.11.07. Radio Big
01.02.08. TV Alfa
01.02.08.
332
Violation of Article 1.1. General and Article 1.2.

Decency and civility of the Code on broadcasting
RTV program.
Violation of Articles 3. and 14. of the Code on
advertising and sponsorship
Written warning
Written warning
Violation of Article 1.1 General, Article 1.2 Decency

Alternativna
and civility of the Code on broadcasting RTV
Written warning
televizija
program.
Violation of Article 1.2 Decency and civility Article

1.3. Limitations related to broadcasting time.
Fine in the
amount of 1000
KM
01.02.08 RTRS
Violation of Article 1.1 General, Article 1.2 Decency

and civility of the Code on broadcasting RTV
Written warning
program..
14.10.08 RTV Vikom
Violation of Article 4. Hate speech, of the Code on

Fine in the
broadcasting RTV program, Articles 16.1, 16.2, 16.3
amount of
Chapter 16. Media during elections campaign of
20,000 KM
Elections Law of B-H
15.10.08. TV OBN
15.10.08.
Violation of Article 4. Hate speech, of the Code on

Fine in the
amount of
30,000 KM
Violation of Article 5. Decency, and Article 6. Fair- Fine in the

Radiopostaja
ness and impartiality of the Code on broadcasting amount of 2000
Mostar
RTV program.
KM
Violation of Article 18 Religious program and

representation of religion in programs, and Article Fine in the
15.10.08. Radio Naba 13. Involvement of children and minors in programs amount of
of RTV stations, of the Code on broadcasting RTV 10,000 KM
program.
19.12.08. TV OBN
Violation of Article 7. False or deceiving material of

Written warning
the Code on broadcasting RTV program.
21.01.09 NTV IC
Kakanj
Violation of Article 6. (Fairness and impartiality)

and Article 19. (Right to response) of the Code on
21.01.09. RTRS
Violation of Article 5. (Decency) and Article 12.

(Basic principles, part three protection of children
Written warning
and minors) of the Code on broadcasting RTV
program.
21.01.09. TV SA
Violation of Article 3. (General principles), Article 6.

Fine in the
(Fairness and impartiality), and Article 13. (Involveamount of 1000
ment of children and minors in programs), of the
KM
Code on broadcasting RTV program.
RTV
21.01.09. Vogoa
Written warning
Violation of Article 12. (Basic principles) and Article

13. (Involvement of children and minors in programs,
Written warning
part three protection of children and minors), of
10.04.09 NTV 101
Violation of Article 11. (Warning for the audience), of

Written warning
10.04.09. BHT 1
Violation of Article 6. (Fairness and impartiality), of

Written warning
333
01.02.08. TV Pink BH
10.04.09. TV OBN
Violation of Article 3. paragraph 6 (General

principles) and Article 21. (Paranormal abilities, exorFine in the
cism, occult activities), of the Code on broadcasting
amount of
RTV programs, and Article 11. (Parapsychology,
10,000 KM
exorcism, occultism and similar), of the Code on
advertising and sponsorship
Violation of Article 12. (Basic principles), of the Code

Written warning
on broadcasting RTV program.
10.04.09.
Radiopostaja Violation of Article 19. (Right to response) of the

Code on broadcasting RTV program.
Mostar
Written warning
RTV
10.04.09.
Vogoa
Violation of Article 8. (Violence and dangerous

behavior) and Article 12. (Basic principles, part three
Written warning
protection of children and minors), of the Code
on broadcasting RTV program.
10.04.09. TV OSM
Violation of Article 12. (Basic principles) and Article

13. (Involvement of children and minors in program,
Written warning
part three protection of children and minors), of
12.05.09.
Radio
Sarajevo
Violation of Article 11. (Warning for the audience)

and Article 12. (Basic principles), of the Code on
Oral warning
22.05.09. TV OBN
Violation of Article 7. (False and deceiving material) Fine in the

and Article 29. (Videos of programs), of the Code on amount of 8000
broadcasting RTV program
KM
22.06.09. ATV
Violation of Article 11. (Parapsychology, exorcism,

occultism and similar), of the Code on advertising Oral warning
and sponsorship
22.06.09. RTV FBiH
Violation of Article 3. (General principles of advertising, telemarketing and sponsorship), Article 14.
(Schedule of advertising on television), Article 19.
Written warning
(General rules related to sponsorship) and Article 18.
(Special public broadcasting services), of the Code
on advertising and sponsorship
Fine in the
amount of
Violation of Article 4.1, 4.2. and 4.3. of General con- 10.000 KM and
21.07.09. TV Bel kanal ditions of the license for broadcasting television the additional
programs, and Articles 5, 14 and 16 of the Code on measure of
advertising and sponsorship, and Article 10 of the license suspenCode on broadcasting RTV program.
sion for 90 days
12.10.09. ATV
334
Violation of Article 3. (General principles of advertising, telemarketing and sponsorship) and Article 5.
(Pornography and violence), of the Code on adver- Written warning
tising and sponsorship.
12.10.09. TV OSM
Violation of Article 10. (Erotic and pornography),

of the Code on broadcasting RTV programs, and
Article 5. (Pornography and violence), Article 14.
(Schedule of advertising on television) and Article
16. (Duration of advertising and telemarketing on
private RTV stations), of the Code on advertising
and sponsorship
12.10.09. TV OBN
Violation of Article 11. (Warning for the audience), of

Written warning
the Code on broadcasting RTV programs
Violation of Article 3. (General principles of advertising, telemarketing and sponsorship) and (Duration
Written warning
of advertising and telemarketing on private RTV stations), of the Code on advertising and sponsorship
09.12.09. NTV 101
Violation of Article 3. (General principles) and Article

5. (Decency), of the Code on broadcasting RTV
Oral warning
programs
09.12.09. TV OBN
Violation of Article 12. (Basic principles, part three

protection of children and minors),
Written warning
of the Code on broadcasting RTV programs
30.12.09. TV Vikom
Violation of Article 3. (General principles) and Article Fine in the

5. (Decency), of the Code on broadcasting RTV
amount of 5000
programs
KM
30.12.09.
Written warning
Violation of Article 3. paragraph 2. (General prinFine in the

Radiopostaja
ciples) and Article 4. (Hate speech), of the Code on amount of 1000
iroki Brijeg
broadcasting RTV programs
KM
30.12.09. RTRS
Violation of Article 14. (Reporting on criminal acts

involving the minors), of the Code on broadcasting Written warning
RTV programs
30.12.09. RTV FBiH
Violation of Article 16. (Protection of privacy, General

principles), of the Code on broadcasting RTV
Written warning
programs
30.03.10. BHRT
Violation of Article 3 paragraph 6 General principles

advertising, telemarketing and sponsorship, Article 8
paragraph 1 Advertising and telemarketing of certain
Written warning
products, and Article 20. Prohibited sponsorship, of
the Code on advertising and sponsorship (Official
Gazette of B-H, No.81/07).
30.03.10. RTV FBiH
Violation of Article 16. Protection of privacy, General

principles paragraph (4) and (6) of the Code on
Written warning
broadcasting RTV programs (Official Gazette of B-H
No. 20/08).
335
12.10.09. TV Kanal 3
Violation of Article 3. paragraph 6 and 7 (General

principles), Article 8. paragraph 4 (Violence and
dangerous behavior), Article 21. paragraph 1
Written warning
(Paranormal abilities, exorcism, occult activities), and
Article 23. (Quackery), of the Code on broadcasting
RTV programs.
30.03.10. TV Alfa
02.09.10.
Violation of Article 29. Videos of programs of the

Code on broadcasting RTV programs (Official
Gazette of 20/08), Article 5. Pornography and
Written warning
violence and Article 8. Advertising and telemarketing
of certain products of the Code on advertising and
sponsorship, (Official Gazette of B-H 81/07).
Violation of Article 14. Reporting on criminal acts

Alternativna
involving the minors of the Code on broadcasting
televizija
RTV programs (Official Gazette of B-H No. 20/08).
Written warning
02.09.10. BHRT

involving the minors of the Code on broadcasting Written warning
RTV programs (Official Gazette of B-H, No. 20/08).
02.09.10. RTV FBiH

02.09.10. Hayat

02.09.10. OBN

02.09.10. RTRS

02.09.10. RTV BN

02.09.10. TV SA

involving the minors of the Code on broadcasting Oral warning
02.09.10. BHRT
Violation of Article 8 paragraph 1 Advertising and

telemarketing of certain products, of the Code on
advertising and sponsorship (Official Gazette of
B-H, No. 81/07).
02.09.10. RTV BN
Violation of Article 12. Basic principles, in the chapter regarding the protection of children and minors of
Written warning
the Code on broadcasting RTV programs (Official
Gazette of B-H 20/08).
02.09.10. OBN
Violation of Article 12. Basic principles (part three

protection of children and minors) of the Code on
Written warning
broadcasting RTV programs (Official Gazette of B-H
20/08).
02.09.10. Pink BH
Violation of Article 5. Decency and Article 12. Basic

principles, in the chapter regarding the protection of
Written warning
children and minors of the Code on broadcasting
RTV programs (Official Gazette of B-H 20/08).
336
Written warning
Tuzlanska
televizija
Oral warning
Violation of Article 3. General principles advertising,

telemarketing and sponsorship, Article 14. Schedule
Televizija
of advertising on television and Article 17. Duration
Prijedor- IPC
17.12.10.
of advertising and telemarketing on public RTV sta- Written warning
Kozarski
tions of the Code on advertising and sponsorship
Vjesnik
in programs of RTV stations (Official Gazette of B-H,
No. 81/07).
17.12.10. OBN
Violation of Article 14. Schedule of advertising on

television of the Code on advertising and sponsorWritten warning
ship in programs of RTV stations (Official Gazette of
B-H, No. 81/07).
337
17.12.10.
Violation of Article 11 of the Code on advertising and sponsorship in programs of RTV stations
(Official Gazette of B-H No. 81/07), and Article
16.12 within chapter 16. Media during elections
campaign, of Elections Law of B-H.
BIBL IO GR A PHY
DOCUMENTS
Act on Competition, Official Gazette B-H No. 48/05, entered into force 27 July 2005,
(Sarajevo, 29 June, 2005).
African Charter on Human and Peoples Rights (Banjul, 27 June 1981) CAB/LEG/
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American Convention on Human Rights (San Jos, 22 November 1969), entered
into force 18 July 1978.
Broadcasting sector policy of B-H (Sarajevo, 28 November 2006), Official Gazette
18/07 as of 13 March 2007.
Code of Honor of B-H Journalists (10 December 2004), entered into force 10 December 2004.
Code on Audiovisual Media Services and Media Services of Radio, Communications
Regulatory Agency (Sarajevo, 15 November 2011), Official Gazette of B-H No.
Code on Broadcasting Radio and Television Programs, Communications Regulatory Agency (Sarajevo, January 2008), Official Gazette of B-H No. 20/08, entered
into force 11 March 2008.
Code of the Communications Regulatory Agency on Commercial Communications
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Commission Notice on the concept of concentration under Council Regulation (EEC)
No 4064/89 on the control of concentration between undertakings, Official Journal
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Communication Law (Sarajevo, 2 September 2003), Official Gazette of B-H No.
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Constitution of Bosnia and Herzegovina, (1995), entered into force 14 December
1995.
Constitution of the Federation of Bosnia and Herzegovina (Sarajevo, 30 March
1994), Official Gazette of FB-H No.1/94, entered into force 30 March 1994.
338
Control of Concentration between Undertakings the Merger Regulation (Brussels,

20 January 2004), (EC) No. 139/2004, Official Journal L 24, entered into force 29
January 2004.
Convention for the Protection of Human Rights and Fundamental Freedoms (Rome,
4 November 1950) entered into force 3 September 1953.
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Regulation (Brussels, 21 December 1989), Official Journal L 395, entered into force
21 September 1990 (EU) No. 4064/89.
Council of Europe, Declaration on Freedom of Expression and Information (29 April
1982).
Council of Europe, Declaration on freedom of political debate (12 February 2004).
Council of Europe, Recommendation 1407 on media and democratic culture (29
April 1999).
Council of Europe, Recommendation No. R (2000) 7 on the right of journalists not to
disclose their sources of information (8 March 2000).
Council of Europe, Recommendation No. R (97) 20 on hate speech (30 October
1997).
Council of Europe, Recommendation No. R (97) 21 on the media and the promotion of a culture of tolerance. (30 October 1997).
Council of Europe, Recommendation No. R (99) 15 on measures concerning media
coverage of election campaigns (9 September 1999).
Council of Europe, Recommendation (2003) 13 on the provision of information
through the media in relation to criminal proceedings (10 July 2003).
Council of Europe, Resolution 1577 (2007) Towards decriminalization of defamation (4 October 2007).
Council of Europe, Resolution Res (2000) 7 of the Committee of Ministers of member
states on rights of journalists not to reveal their sources (21 September 2000).
Council of Europe, Resolution (74) 26 on the right of reply the position of individuals in relation to the press (2 July 1974).
Council of Europe, Resolution 1003 on the ethics of journalism (1 July 1993).
Council of Europe, Resolution 1142 on parliaments and the media (7 November
1997).
Council of Europe, Resolution 1165 on the right to privacy (26 June 1998).
339
BIBLIOGRAPHY
Constitution of Republika Srpska (1992), Official Gazette of RS No. 28/94, entered

into force in 1994.
BIBLIOGRAPHY
Criminal Code of B-H (Sarajevo, 24 January 2003), Official Gazette of B-H No. 3/03,
Criminal Code of Brko District of Bosnia and Herzegovina, (Brko, 28 May 2003),
Official Gazette of BD B-H No. 10/03, entered into force 1 July 2003.
Criminal Code of the Federation of B-H (Sarajevo, 9 July 2003), Official Gazette of
FB-H No. 36/03, entered into force 1 August 2003.
Criminal Code of Republika Srpska (Banjaluka, 28 May 2003), Official Gazette of RS
No. 49/03, entered into force 1 July 2003.
Draft Principles on National Security and the Right to Information, (adopted on 1
July 2011).
Decision on passing the Law on Protection against Defamation of Federation of
Bosnia and Herzegovina, Office of the High Representative in B-H (Sarajevo 1
November 2002).
Decision on restructuring Public Broadcasting System in Bosnia and Herzegovina
and on the freedom of information and on abolishing penalties for defamation and
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340
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344
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Edited by Mehmed HALILOVI and Amer DIHANA

Title: MEDIA LAW IN BOSNIA AND HERZEGOVINA

CIP - Katalogizacija u publikaciji

particularly in light of the countrys aspirations to European Union membership.

DIFFERENCE BETWEEN FACTS AND VALUE JUDGMENT ............................................................ 142

LIMITATIONS OF FREEDOM OF EXPRESSION PROTECTING THE FUNCTION OF

OVERVIEW OF VIOLATIONS OF RELEVANT RULES AND REGULATIONS ............................... 266

N E E D F OR MED IA L AW IN BOSN IA AND HER Z EGOVINA

It is not common to begin an assessment/evaluation and review of a serious

create a map that can be impactful on industry, citizens and state.

Convention, it is assessed whether the interference of domestic authorities in this

ethnic, cultural and religious diversity as well as abandoning programs which

PRECONDITIONS FOR A LEGAL ENABLING ENVIRONMENT

GENERAL CONDITIONS FOR THE ACTIVITIES OF FREE MEDIA

GENERAL CONDITIONS FOR THE ACTIVITIES OF FREE MEDIA

A LEGAL ENABLING ENVIRONMEN FOR NEWS MEDIA ACTIVITY

II. Rule of Law

GENERAL CONDITIONS FOR THE ACTIVITIES OF FREE MEDIA

FUNDAMENTALS OF FREE MEDIA AND JOURNALISM

Mehmed Halilovi i Mirjana Nadadin-Defterdarevi

CONSTITUTIONAL AND LEGAL FRAMEWORK ENSURING FREEDOM OF EXPRESSION

CONSTITUTIONAL AND LEGAL FRAMEWORK ENSURING

FREEDOM OF EXPRESSION NORMATIVE FRAMEWORK

The protection of freedom of expression is also ensured by laws on public information

LEGISLATIVE ACTIVITIES OF INTERNATIONAL COMMUNITY

Decision on the establishment of the Independent Media Commission

Decision on the appointment of members of the Council IMC (1998),

Decisions on the restructuring of the Public Broadcasting System in B-H and on

Dayton Peace Agreement.

Conclusion of the Peace Implementation Council: Political Declaration from Ministerial

CONSTITUTIONAL AND LEGAL FRAMEWORK ENSURING FREEDOM OF EXPRESSION

Such formulation of protection of freedom of expression does not refer only to

FREEDOM OF EXPRESSION NORMATIVE FRAMEWORK

freedom of information and decriminalization of libel and defamation (30. 7. 1999.),

Decision amending the Law on Radio-Television of the RS (1999),

Decision on the implementation of the Law on Radio-Television of the

Second Decision on restructuring the Public Broadcasting System in B-H

Decision Combining the Competencies of the Independent Media

Decision Imposing the Law on Radio-Television of Republika Srpska (24. 5. 2002.),

Decision Imposing the Law on Radio-Television of the Federation of Bosnia

Decisions of High Representative, along with all controversies related to their

Law on Amendments of Freedom of Access to Information Act in B-H (Sarajevo, December

CONSTITUTIONAL AND LEGAL FRAMEWORK ENSURING FREEDOM OF EXPRESSION

levels10, as well as by establishing the Independent Commission for Media

FREEDOM OF EXPRESSION NORMATIVE FRAMEWORK

INTERNATIONAL CONVENTIONS AND AGREEMENTS IN THE LEGAL SYSTEM OF B-H

I N T ER NAT IO N AL CON V EN TION S AND AGR EEM ENTS

FREEDOM OF EXPRESSION NORMATIVE FRAMEWORK

THE MOST IMPORTANT INTERNATIONAL SOURCES

Universal Declaration of Human Rights proclaimed by the United

The African Charter on Human and Peoples Rights was adopted by

The American Convention on Human Rights was adopted on the

The International Covenant on Civil and Political Rights adopted by

The Convention for the Protection of Human Rights and Fundamental

Article 10 of the European Convention:

INTERNATIONAL CONVENTIONS AND AGREEMENTS IN THE LEGAL SYSTEM OF B-H

FREEDOM OF EXPRESSION NORMATIVE FRAMEWORK

ROLE OF EUROPEAN COURT OF HUMAN RIGHTS

European Court of Human Rights,at: http://www.echr.coe.int/echr/ (accessed 8 December 2011).

European Commission of Human Rights, at: http://ec.europa.eu/ (accessed 8 December

Committee of Ministers of the Council of Europe, at: http://www.coe.int/t/cm/home_

Declaration on the Freedom of Expression and Information18 (adopted by

Declaration on freedom of political debate19 (adopted by the Committee of

the Resolution of Parliamentary Assembly 1142 (1997) on parliaments and