Case Summary and Outcome

The Constitutional Court of Bosnia and Herzegovina (“CCBH”) found a violation of Article 11 of the European Convention of Human Rights (“ECHR”) for the state’s failure to meet positive and procedural obligations in a case involving the country’s first queer festival. The festival aimed to present the life of LGBTIQ members through various artistic exhibitions and conversations. Despite the fact that the organizers had reported threats and cyberattacks to the police, the authorities did not respond until physical attacks occurred on the first day of the Festival. As a result, they failed to take any reasonable preventative steps, infringing on Article 11 of the ECHR.

Facts

The appellant (a non-governmental organization) intended to stage the first Sarajevo Queer Festival (“Festival”) from August 24 to August 28, 2008, with the goal of showcasing LGBTIQ people’s life stories through cultural and artistic forms. The Festival’s program comprised tribunes, debates, networking, exhibitions of young and emerging artists from the region, as well as cinema screenings and theater performances at specific places designated for such reasons.

While planning for the Festival, the appellant discovered that the proposed date would have fallen during Ramadan, a Muslim holy month. Nonetheless, the Festival’s planning operations continued because the appellant regarded Ramadan to be the most peaceful time of the year. A few publications critical of the Festival were published before it was scheduled to begin. On September 2, 2008, the appellant reported the inflammatory online articles to the local police. Posters reading “Death to Gays” and “We Will Not Allow Gay Festival” were visible all around the city on the same day [para. 11].

On September 8, 2008 the appellant informed the police about threats it had received and that the Festival would take place in Sarajevo on September 24, 2008. It added that, in addition to their personal security, police officers were necessary owing to discrimination against LGBTIQ people and phone threats. The appellant further demanded that hostile and hateful internet articles and comments, as well as posters, be condemned and investigated by various authorities.

The appellant and the private security team met with the local police, and it was agreed that the police would maintain peace outside, while the private security would handle the premises.

The appellant sent out invitations via the Internet, and when their website was hacked, the invitations were compromised, allowing people who weren’t supposed to attend to do so.

During the days leading up to the Festival, a number of notable people from many backgrounds publicly agitated against it, made critical and discriminatory remarks about both the Festival and the LGBTIQ community. The appellant notified the police that the Festival’s opponents had scheduled their protest at the same time that the Festival was supposed to convene.

On September 24, the Festival began, and there were anti-Festival demonstrations in the area. Protests became violent during the Festival period (24-28 September), and police arrested a number of rioters. Several Festival participants were hurt. The police filed criminal complaints and informed the prosecution office about the attacks. Several misdemeanor proceedings were initiated. On September 25, the appellant chose not to continue with the Festival events anymore, thereby cancelling it. The appellant also reported to the police threats that it and its members had received through variety of means.

On October 31, the appellant was supplied with a report detailing the actions taken by law enforcement (e.g. locating the IP addresses of online commentators and cyber-attack perpetrators, identification of several persons responsible for attack on September 24). The police imposed disciplinary sanctions on several officers for failing to take necessary steps on the first Festival day, but these decisions were overturned by the police appeal chamber. The domestic courts denied most of the criminal complaints, sentencing only two individuals.

Decision Overview

The appellant claimed that state authorities had failed to fulfill their positive obligations under Articles 3, 8, 11, 13, and 14 of the European Convention on Human Rights (“ECHR”), as well as Protocol 12’s Article 1. The CCBH ruled that the vast majority of Articles were inadmissible because the appellant, as a non-governmental organization, could not enjoy the requested rights. However, the appellant was allowed under Article 11 (freedom of assembly).

Because the state did not take reasonably necessary measures, the appellant’s complaint was grounded on positive and procedural obligations under Article 11 of the ECHR. The authorities, on the other hand, stated that the attacks and violence were caused by the appellant’s organizational flaws, claiming that the website was hacked, that the appellant did not strictly follow police instructions, and that the appellant underestimated the number of visitors. The CCBH began its assessment by citing the European Court of Human Rights’ (“ECtHR”) principles, emphasizing that positive and procedural requirements are not absolute in nature. The court also concluded that the right to contra-protest does not include the ability to impede initial protests.

The CCBH pointed out that domestic law did not require festival organizers to take the specific security measures that the police had instructed the appellant to take. As a result, such authorities’ security orders were not based on domestic laws. The appellant had informed the police about the website hack, and there was no more responsibility on its part. Therefore, it was hard to conclude that the attack happened due to the appellant’s omissions.

After assessing the circumstances surrounding the taken measures, the CCBH stated that “it appear[ed] that the public authorities [had] failed to take reasonable and appropriate measures to prevent conflict between supporters and opponents of the Festival, as well as individual attacks on Festival participants that followed” [para. 108].

The court also looked into whether the authorities’ actions during the Festival contributed to the negative and hostile attitude against the Festival, its organizers, and supporters. The goal of the festival was to showcase and promote the LGBTIQ community, their lifestyle, and the challenges they faced daily. Although such events may cause tensions, it was the role of authorities to ensure pluralism and differences in society, as well as to release statements aimed at bringing opposing parties together in peace. Despite this, a number of public officials expressed their displeasure with the Festival and the appellant. Only two public bodies responded to the appellant’s letter requesting public organs to condemn hate speech and incitement to violence against the Festival, as well as threats against the appellant’s members, out of the many contacted. As a result, the court declared that “the public authorities’ passive attitude, i.e. the attitude displayed in the public appearances of certain officials, certainly contributed to the violence that occurred on” [para. 112].

The final aspect to court’s decision was the effectiveness of the investigation, including discovering and punishing the organizers and perpetrators of the violence. Despite the fact that the identities and images of these individuals were publicized in the media, the appellant stated that no one had been held accountable for the offense of impeding or hindering public gatherings. All threats and impediments to the Festival’s activities were promptly reported to the police by the appellant. Nonetheless, the authorities had taken no action to identify those responsible for the threats. Therefore, “the investigation, which was launched after the incident […] in a situation where the authorities, although aware of the threats, did nothing to investigate them and thus prevent violence, cannot be accepted as fulfilling the positive obligation of public authorities to act preventively and to conduct an effective investigation” [para. 115].

The CCBH took into account the platform via which the appellant was threatened and attacked – the Internet. In this matter, the CCBH noted that the police did nothing to try to find out who was behind the reported cyberattacks on the appellant’s website or the threats it received through its website. Further, no actions were taken against those who ran websites where hateful or violent posts were published. There was a special police unit for cybercrime, but it reacted only after the attacks happened (September 27), even when the first online threats started 17 days earlier. The court admitted that the unit’s operations resulted in the identification of a number of people who were later charged with crimes or misdemeanors. This was confirmation that online identification was not an excessive burden for the authorities, and that such steps could have been adopted earlier, much prior to the incident.

The CCBH further opined that in a democratic society, the plurality principle meant that states had a positive obligation to suppress discriminatory or offensive expression. Although Bosnia & Herzegovina had ratified a number of international cybercrime treaties, there were no specific laws for a vast majority of internet activities. Therefore, the country lacked a satisfactory legal framework for prevention and investigation of online offenses, discriminatory or hate speech.

The CCBH awarded the appellant 6000,00 KM (around 3000,00 EUR). The court did not find it necessary to examine complaints under Articles 13 and 14 in relation to Article 11, and Article 1 of the Protocol 12 to the ECHR.

There were two separate opinions. On the admissibility question, Judge Caca Nikolovska disagreed with the majority, holding that the appellant had locus standi even in cases involving other ECHR articles, not just Article 11. Judge Mirsad Ćeman, on the other hand, argued that there had been no breach of Article 11 of the ECHR. He claimed that the authorities took various appropriate steps and that the majority in this case was a “tough judge.” He concentrated on the post factum state’s measures, concluding that the authorities acted in accordance with their positive commitments. In his opinion, individuals opposed to the Festival had a genuine interest in the first place, but only if their advocacy remained nonviolent. In terms of the legal framework, the judge stated that, while no specific laws existed for the cyber-realm, some cyber-crimes were punishable under the local (general) criminal law act (s). Thus, the issue was not the framework itself, but rather its application in each scenario, including this one.