4
SMAJIĆ v. BOSNIA AND HERZEGOVINA DECISION
9. As regards the interpretation of the relevant law, the Appellate Court
concluded, on the basis of expert witnesses’ statements, that the Internet
forum had been “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”. It also
concluded that for the element of the crime of incitement to hatred or
intolerance to obtain it was not necessary for the applicant’s action actually
to have had negative consequences, but only that they had been “objectively
capable of producing such effects”. The Appellate Court agreed that the
posts had been written in a hypothetical form (that is to say in respect of a
war scenario that had little possibility of realisation). However, taking into
account the full content of the posts, the court 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 behaviour towards one of the ethnic groups in BD.
The applicant had used expressions which were highly insulting to members
of an ethnic group, such as “this stinking Christmas”, “get rid of the danger
behind our backs”, “the city centre should then be slowly cleansed” and
“Serbs who came from different shitholes live there”. The court held that
the applicant’s claim that the police and the prosecutor had given his
statements to the media only in order to be able to stage his prosecution was
totally unsubstantiated and stemmed from the misinterpretation of the limits
of freedom of expression. It concluded that freedom of expression was
significantly reduced in multi-ethnic communities, particularly when it
resulted in offending the religious or national feelings of the members of
religious or ethnic groups in such communities.
10. On 30 January 2013 the applicant lodged a constitutional appeal,
relying on Articles 6, 9, 10 and 14 of the Convention. As to the complaints
under Articles 6 and 10, the applicant essentially relied on the same
arguments as those indicated in his appeal to the Appellate Court (see
paragraph 7 above).
11. On 20 April 2016 the Constitutional Court of Bosnia and
Herzegovina (“the Constitutional Court”) rejected the applicant’s appeal as
manifestly ill-founded. The court held that the Basic Court and the
Appellate Court had correctly applied both the procedural and the
substantive law and had given well-reasoned and detailed decisions. The
Basic Court had described the method by which it had assessed the evidence
and had established the facts, which did not appear arbitrary. Moreover,
both lower courts had described in a detailed and clear manner what
constituted the elements of the criminal offence in question concerning the
applicant’s actions and had addressed all the applicant’s arguments. They
had also given sufficient and relevant reasons for finding the applicant
guilty. As regards the right of defence, the Constitutional Court agreed that
the applicant’s right to legal assistance had not been restricted. The
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