Article 10 ECHR and incitement of racial and religious hatred: Smajić

The background

In Smajić v Bosnia and Herzegovina [2018] ECHR (Application no. 48657/16), Mr Abedin Smajić, a lawyer, had been arrested on suspicion of inciting national, racial and religious hatred, discord or intolerance: he was charged, convicted and sentenced to one year’s imprisonment suspended for three years. The domestic court had found that between 3 January and 24 February 2010, under a pseudonym, he had made a number of posts on the Internet forum of a website called Bosnahistorija about the course of action to be undertaken by Bosniacs in the event of a war and the secession of Republika Srpska (one of the two constituent entities of Bosnia and Herzegovina). The following is a sample:

“in my opinion, we should attack Grčica and Srpska Varoš … the city centre should then be slowly cleansed because there are many buildings and there is a risk of heavy losses … Serbs who came from different shitholes live there; there is [only a very small native] population … Ilićka is a settlement [which consists mostly] of radical-thinking Serbs who would be the first to concoct [a fight] with Bosniacs from Brčko and which, in the event of any scenarios [involving secession] from [Republika Srpska] should be attacked and neutralised first …“ [5].

He did not deny making those statements. The trial court had held that the Internet was a public place for the purposes of the offence with which he had been charged and that he had disturbed inter-ethnic relations between the “constituent peoples” of Bosnia and Herzegovina (persons who declare affiliation with Bosniacs, Croats and Serbs) [6].

Both Mr Smajić and the prosecutor appealed against that judgment. Mr Smajić argued, inter alia, that a “closed forum” on the Internet could not be considered a “public place” for the purposes of the offence: further, he had not incited hatred but had only expressed his personal opinion in relation to a hypothetical scenario which had a correlation to the “real world” – namely, frequent calls by the highest political authorities in the Republika Srpska for secession. He also complained that the police had not respected his right to legal assistance [7].

The appellate court upheld the judgment at first instance [8]. As regards the interpretation of the relevant law, the Internet forum had been “closed” only inasmuch as participation required registration, but that the contents had been fully available for access by anyone and could thus be considered a “public place”. Moreover, for the element of the crime of incitement to hatred or intolerance to obtain it was not necessary for accused’s actions to have had negative consequences, merely that they had been “objectively capable of producing such effects”. Though 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), they were nevertheless advocating a strategy of behaviour towards one of the ethnic groups in Bosnia and Herzegovina. 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” [10]. A further appeal to the Constitutional Court of Bosnia and Herzegovina was rejected the applicant’s appeal as manifestly ill-founded [11].

Before the Fourth Section ECtHR, Mr Smajić claimed that he had been denied access to a lawyer during his first questioning at the police station because his lawyer had telephoned the police station but had been told that he was not there and that the domestic courts had arbitrarily interpreted the relevant law, in breach of his right to a fair trial under Article 6 ECHR [15]. He also complained that his conviction had been in breach of his right to freedom of expression, as guaranteed by Article 10. He also relied on Articles 9 and 14 [16].

The judgment

On the Article 6 point, the Court concluded that tMr Smajić, who was a lawyer himself, had unequivocally waived his right to legal assistance [22] and that the complaint was manifestly ill-founded [23].

As to the complaint under Article 10, his conviction was undoubtedly an “interference” with his right to freedom of expression [31]; however, it was “prescribed by law” and pursued the legitimate aim under Article 10 §2 of the protection of the reputation and rights of others [32].

“The Court reiterates 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. Subject to Article 10 §2, it applies not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, but these must be construed strictly, and the need for any restrictions must be established convincingly” [33].

Mr Smajić had written a number of posts on a publicly-accessible Internet forum in which he described military action to be undertaken against Serb villages and neighbourhoods in the BD region in the event of war caused by the Republika Srpska’s secession. The domestic courts had taken the view that those posts contained the constituent elements of the offence of inciting to national, racial and religious hatred, discord or intolerance and that they could not be considered to constitute the expression of free thought on topical matters of general interest. Furthermore, the Appeal Court had held that Mr Smajić had used expressions which were highly insulting to members of an ethnic group and the Constitutional Court had endorsed that reasoning [37 & 38]. The posts, even if written in a hypothetical form, had touched upon the very sensitive matter of ethnic relations in post-conflict Bosnian society and the domestic courts had examined the case with care and in conformity with the principles of Article 10 [39] and had given relevant and sufficient reasons for his conviction. Given that the maximum penalty was five years’ imprisonment, a one year suspended sentence had not been disproportionate [40].

In the circumstances, the interference with Mr Smajić’s right to freedom of expression had not violated Article 10 of the Convention and his complaint was manifestly ill-founded [41 & 42]. The further complaints under Articles 9 and 14 were manifestly ill-founded [43].

The application was inadmissible.

Cite this article as: Frank Cranmer, "Article 10 ECHR and incitement of racial and religious hatred: Smajić" in Law & Religion UK, 12 February 2018, http://www.lawandreligionuk.com/2018/02/12/article-10-echr-and-incitement-of-racial-and-religious-hatred-smajic/

[With thanks to Howard Friedman for the lead.]

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