The Case of Sheikh Ali Salman [Bahrain]
Closed Mixed Outcome
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The European Court of Human Rights (“ECtHR”) unanimously ruled that the domestic courts had not violated the applicant’s right to freedom of expression by convicting him to a year’s imprisonment for inciting national, racial and religious hatred, discord or intolerance online. The applicant, a Bosnian lawyer, had published some posts on the website Bosnahistorija referring to the potential actions which Bosniacs would have to take in the event of a war and the following secession of the Republika Srpska, one of the two constituent entities of Bosnia and Herzegovina. The ECtHR reasoned that the national penalty was proportionate and the restriction on freedom of expression complied with the criteria provided by Article 10, paragraph 2 of the European Convention on Human Rights (“ECHR”).
On March 12, 2010, a Bosnian lawyer, Mr. Abedin Smajić, was arrested for inciting national, racial and religious hatred, discord or intolerance online. Two years later, on January 30, 2012, the Brčko District (hereinafter, “BD”) Basic Court (Osnovni sud Brčko Distrikta) confirmed the charge finding Mr. Smajić guilty of inciting hate and intolerance.
The BD Court focused on the applicant’s online behavior, specifically that, using a pseudonym, he had published posts on the website Bosnahistorija, referring to the potential actions which Bosniacs would have to take in the event of a war and the following secession of the Republika Srpska, one of the two constituent entities of Bosnia and Hervegovina. As a result, it found that such online posts, being published in a public place such as the website in question, could affect the relationships between different ethnicities, in particular Bosniacs, Croats and Serbs. For these reasons, the Court convicted the lawyer to one-year imprisonment and his personal computer and laptop were seized in accordance with Article 160, paragraph 4, of the BD Criminal Code.
On appeal, the lawyer criticized the decision of the BD Basic Court arguing that a closed online forum could not be considered a public place and, in any case, his statements did not constitute an incitement to hatred but only an expression of his opinion. The Appellate Court concluded that the forum in question could be considered “closed” only in respect of participation, since that act had required registration, but that the contents had been fully available for access by anyone, and could thus be considered a “public place.” Regarding the incitement to hatred or intolerance, the Court considered that the actual effects of the conduct were not relevant and it was sufficient that such statements were “objectively capable of producing such effects.” The Appellate Court concluded that freedom of expression was reduced when it offends the religious or national feelings of a specific ethnic community. As a result, on November 28, 2012, the BD Appellate Court (Apelacioni sud Brčko Distrikta) upheld the decision of the BD Basic Court.
On January 30, 2013, the applicant referred the case to the Constitutional Court, repeating the arguments made in his earlier appeal. The Court stated that freedom of expression could be restricted according to Article 10 paragraph 2 of the ECHR, namely if it is “prescribed by law”, pursues one or more of the legitimate aims such as national security or the rights of others, and is “necessary in a democratic society” for achieving such an aim or aims. The Constitutional Court found that the lower judges had correctly applied national rules which corresponded with the Convention. Accordingly, on April 20, 2016, the Constitutional Court of Bosnia and Herzegovina rejected Mr. Smajić’s appeal as manifestly ill-founded.
Mr. Smajić applied to the ECtHR alleging, inter alia, a violation of his right to freedom of expression under Article 10 of the ECHR. In particular, he repeated the fact that he did not intend to incite racial and religious hatred or intolerance, but merely to express his personal opinion.
The ECtHR firstly noted that the applicant’s conviction constituted an interference with his freedom of expression. According to Article 10, paragraph 2 of the ECHR such interference can be justified where it is prescribed by law, pursues a legitimate aim or aims and is necessary in a democratic society for the achievement of such aim(s).
The ECtHR referred to established precedent and stated that “freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment.” It said it applies not only to those expressions which are “favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.” [Para. 33].
The ECtHR said its role was not to rule on the constituent elements of the crime established by Bosnian law but to review the decision in question under the criteria provided by Article 10 of the ECHR, focusing, in particular, on its interference. Moreover, the Court should rule on the proportionality of interference by looking at the legitimate aim(s) at stake and consider the national authorities’ application of the principles established by Article 10. The Appellate Court had accepted that the applicant published posts on an online forum freely accessible by the public in a hypothetical way (that is to say in respect of a war scenario that had little possibility of realization) but, taking into account the content of the posts, it concluded that they could not be considered to constitute the expression of free thought on topical matters of general interest, but rather a highly inappropriate form of dialogue advocating a strategy of behavior towards one of the ethnic groups in BD.
The ECtHR said the subject of the applicant’s posts, even if written in a hypothetical form, had touched upon the very sensitive matter of ethnic relations in post-conflict Bosnian society. Furthermore, the domestic courts had examined the case with care and in conformity with the principles embodied in Article 10 and had given relevant and sufficient reasons for the applicant’s conviction.
Then, the ECtHR focused on the nature and weight of the sanction imposed on the applicant in order to assess the proportionality of the Article 10 interference. In particular, the Court noted that the maximum penalty under Bosnian criminal law for the crime in question was five years’ imprisonment. In this case, Mr. Smajić had been sentenced to one year’s imprisonment suspended for three years and the seizure of his personal computer and his laptop. The ECtHR did not consider the penalties disproportionate to the aim pursued by the interference, namely the protection of the reputation and rights of others.
Having regard to these reasons, the ECtHR considered such interference justified and proportionate. The restriction on the applicant’s right to freedom of expression did not violate Article 10 of the ECHR. Hence, the Court considered the appeal manifestly ill-founded and rejected it.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision has a mixed outcome. The decision contracts freedom of expression because it accepts that public authorities are entitled to sanction forms of speech which incite hatred. However, the Court did apply the three part test to assess the legality of the interference under Article 10 of the ECHR and taking into consideration the context of ethnic relations in post-war Bosnia, gave the domestic courts a wide margin of appreciation. The Court reasoned that the online forum constituted a public space and that the contents of the hypothetical military actions to be taken against Serb villages in the event of war, did not have to result in verifiable consequences but that they had been “objectively capable of producing such effects.” Therefore the Court found that the interference was provided by law, as per Article 160 of the 2003 BD Criminal Code (Krivični Zakon Brčko Distrikta, BD Official Gazette nos. 10/03, 45/04, 6/05, 21/10, 9/13, 33/13 and 26/16), which states: “(1) Any person who incites or stirs up national, racial or religious hatred, discord or intolerance among the constituent peoples and others living in Brčko District [may] be punished by a custodial sentence of no less than one year and not exceeding five years…(4) Materials and items which transmit the [kind of] messages listed in paragraph 1 of this Article, as well as the tools for their production, multiplication or dissemination, will be seized”. Further, the ECtHR considered that the imposition of a one-year imprisonment together with the seizure of the applicant’s personal computer and the laptop was proportionate to the legitimate aim pursued by such penalty, namely the protection of the rights and regulation of others.
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