Constitutional Court: Criminal Code provision on defamation of Republika Srpska unconstitutional, criminalization of slander not contrary to BiH Constitution

(Patria) - Deciding on the request of Denis Zvizdić, Deputy Speaker of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina, and 14 members of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina, the Constitutional Court found that Article 280a of the Criminal Code of Republika Srpska ("Official Gazette of Republika Srpska" Nos. 64/17, 104/18, 15/21, 89/21, www.ohr.int – Decisions of the High Representative Nos. 12/23 and 73/23) is not in accordance with Article II/3.h) of the Constitution of Bosnia and Herzegovina and Article 10 of the European Convention, and repealed the contested provision of the said law.

It was further determined that Articles 208a, 208b, 208v, 208g, 208d, and 208đ of the cited law are in accordance with Article II/3.h) of the Constitution of Bosnia and Herzegovina and Article 10 of the European Convention.

Summary of the decision:

Regarding the assessment of the constitutionality of Article 280a, the Constitutional Court, among other things, considered that the scope of acts that can be considered punishable under Article 280a of the contested law (Defamation of Republika Srpska and its peoples) calls into question the proportionality of interference through criminal sanctions. Furthermore, the Constitutional Court noted that the criminal offense under the cited article, for which imprisonment is prescribed, allows for the application of measures prescribed by the Law on Criminal Procedure to ensure the presence of the accused and the successful conduct of criminal proceedings, i.e., the possibility of detention being imposed on the accused, which further confirms the deterrent effect of Article 280a. The Constitutional Court concluded that Article 280a is not proportional to the objectives for which it was enacted and that such interference with freedom of expression is not "necessary in a democratic society".

Examining Articles 208a, 208b, 208v, 208g, 208d, and 208đ, the Constitutional Court pointed out that the fact that slander, after a long period, is again prescribed as a criminal offense is not in itself contrary to the Constitution of BiH or the European Convention.

"However, the Constitutional Court considered it necessary to point out that, although it did not deem the aforementioned provisions unconstitutional, the competent authorities in Republika Srpska should act with particular care in cases of criminal prosecution for offenses prescribed by these articles, and especially take into account that the contested provisions are applied in accordance with the standards established by the long-standing practice of the European, as well as the Constitutional Court, and emphasized that the competent authorities should, as much as possible, avoid the use of legal remedies that could deter citizens, and especially journalists, from expressing critical opinions on matters of public interest due to fear of criminal and other sanctions. The Constitutional Court concluded that Articles 208a, 208b, 208v, 208g, 208d, and 208đ of the Criminal Code of Republika Srpska are in accordance with Article II/3.h) of the BiH Constitution and Article 10 of the European Convention," the decision of the Constitutional Court of BiH states.