Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
Closed Contracts Expression
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The Constitutional Court of Bosnia and Herzegovina (CCBH) ruled that there had been no violation of the freedom of expression of the Political Party “Ujedinjena Srpska” following the decision of the Central Election Commission of Bosnia and Herzegovina (CEC) to fine the party for illegal acts of political campaigning. The CEC had fined the political party for running a paid electoral campaign during a period it was not allowed to do so. The Bosnia and Herzegovina Court (BHC), as the second-instance forum, upheld the CEC’s decision. The CCBH subsequently held that the interference with Ujedinjena Srpska’s right to freedom of expression fulfilled the tripartite test of legality, achieving a legitimate aim, and necessity.
The appellant in this case was the Political Party “Ujedinjena Srpska” (US). By the virtue of a decision from the CEC on November 3, 2020, the appellant was fined approximately 500 euros when one of its candidates, Mile Aljetić (M.A.), ran a paid election campaign via Facebook before the official start of the election campaign.
M.A. had posted on his Facebook’s sponsored profile: “Dear friends, fellow citizens and all those who follow my political work, I would like to inform you that my candidacy for a representative in the Assembly of the City of Banja Luka has been verified for the list of Ujedinjena Srpska under number 17. Those of you who appreciate my work, and want to support me and believe that I will be a good representative in the Assembly, I expect you to contact me. You can follow all my further activities via social networks and the website https://milealjetic.rs/” [para. 2].
The CEC invoked Article 16.14 (3) of the Election Act which banned running a campaign via press or electronic media or any mode of paid public advertising in a period between the day of calling elections and the day of an election campaign’s official start. Also, Article 1.1.a (6) of the Election Act provided that an election campaign meant acts within a period defined by the Act as when a political entity informs voters and the public in a manner determined by law about its program and candidates for the upcoming elections. The fine itself, as well as the amount of it, were envisaged by Article 19.9. (1) (t) of the Election Act. Having in mind these provisions and the fact that the Facebook post was sponsored (the local branch of Transparency International delivered the screenshot of the post), the CEC fined the appellant [para. 4-6].
US unsuccessfully appealed to the BHC and the court found that even though the exact date of the Facebook post was not identified in the CEC’s decision, the decision is valid since the appellant did not dispute that the M.A. posted on Facebook before October 16, 2020 – the first possible day of paid political advertising.
The BHC further stated that the CEC correctly assessed the content of the Facebook post by concluding that the post represented an action which, according to the provision of Article 1.1a (6) of the Election Act, had features of the election campaign. It pointed out that the mentioned post was not just about informing the public that M.A. was a verified candidate but it was also about informing the public on program activities related to the election candidacy. Next, the court stated that the screenshot of the M.A.’s Facebook page indicated that the post was sponsored, making it a paid campaign. The court concluded: “the character of a paid campaign [did] not only include publications made based on payment by advertisers but also promoting on sites if they are sponsored by third parties, which is why the appellant’s claim that the fact of payment was not proven [was] irrelevant” [para. 10].
The appellant filed the appellation to CCBH arguing the alleged violation of several rights: fair trial, freedom of expression, legality principle and property.
The CCBH had to decide if the BHC and CEC decisions, inter alia, had violated the appellant’s right to freedom of expression.
The Court reiterated the general principles of Article 10 of the European Convention on Human Rights (ECHR), including the notion of the tripartite test – whether the interference was legal, achieved a legitimate aim, and was necessary. Referencing Selistö v. Finland ECtHR  56767/00, the Court also noted the issue of whether the reasons and justification given by the competent authorities for interference in the freedom of expression were relevant and sufficient [para. 23].
On the issue of the legality of interference, the CCBH believed that the CEC and the BHC had rendered their decisions pursuant to the Election Act and bylaws. The Court agreed with the findings of the CEC and the BHC on the question of whether the Facebook post had been paid or not, concluding that the post had been sponsored and thus paid. Hence, the interference was in accordance with the law [para. 25-26].
The necessity and legitimate aim were analyzed together and the CCBH said that “the relevant provisions of the Election Act and bylaws should be viewed in the context of the state’s discretion to put certain restrictions in exercising certain rights guaranteed by the Constitution of Bosnia and Herzegovina and the European Convention to conduct the electoral process efficiently and democratically” [para. 27].
Additionally, the court declared that the interference “[did] not impose an excessive burden on the appellant because it was fined with a minimum amount in a situation where it [the appellant] was found responsible for violating the Election Act on […] Facebook, which social network is generally known to have a large number of active users. Namely, the restriction in question is proportional to the goal of the wider community, which in terms of Article 10 paragraph 2 of the European Convention, aims to preserve the regularity of the election process and prevent irregularities related to it, which is indisputably the interest of all participants in the election process and is, in fact, the goal of any developed democratic society” [para. 28]. Thus, the CCBH found no violation of Article 10 of the ECHR and denied the appellation as prima facie unfounded.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The right to freedom of expression is not an absolute one and limiting it for elections can be regarded as legitimate. Setting clear and precise rules on how to behave during a political campaign is not just allowed, but is necessary in a democratic society. Hence, the BH Constitutional Court, quite correctly, accepted that BH election law remained within the margin of appreciation, and that these rules set proportionate and reasonable limits for the sake of a proper campaign.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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