Decriminalization of defamation in Bosnia and Herzegovina - 10 years of court practice

From the time of the emergence of the right to honor and reputation in science until today, they have been followed by a whole series of controversial and differently resolved issues, starting with the dilemma of whether the right to honor and reputation is an independent right or a subtype of the right to mental integrity, whether, with considering that in the case of a violation of the right to honor and reputation, an earlier state cannot be established, i.e., the consequences of committing the violation cannot be completely eliminated, the awarding of monetary compensation for non-material damage is justified, whether the right to compensation for damage also belongs to the legal entity, whether the right to reply at the same time, the obligation of the injured party, whether individual non-material forms of satisfaction can be cumulated, what criteria are used when assessing the amount of monetary compensation for non-property damage, how damage caused by injury to honor and reputation is proven, whether the protection of the honor and reputation of the deceased is a personal right of the deceased or a special personal rights of relatives, whether the right to compensation can be assigned, what circumstances justify the exclusion of liability for defamation, etc.

These and similar important dogmatic legal issues are still being disputed and it cannot be claimed that some positions have completely prevailed, so the subject of the research will be an attempt to elaborate more closely the theoretical and practical aspects of the protection of honor and reputation within the framework of civil law in order to find the optimal construction of their legal protection.

In particular, it will be shown in which direction judicial practice is moving in efforts to protect these personal rights as effectively as possible, and to what extent the practice of domestic courts is aligned with the practice of the European Court of Human Rights, both in terms of the criteria that courts use when assessing whether there was a violation of honor and reputation, as well as regarding the resolution of the antinomy of the right to express an opinion and the right to honor and reputation, i.e. the question of when and in what circumstances which of these two rights is given priority.

Special attention will be paid to the assumptions for liability and exemption from liability, as well as the circumstances on which the assessment or awarding of compensation for damage to honor and reputation depends.

The specifics of damage caused to reputation and honor through the means of public information will be elaborated in particular, considering that due to these specifics, this issue requires a modified approach.

Therefore, the subject of this scientific research project is domestic judicial practice, considering the fact that the FBiH Defamation Protection Law was adopted exactly ten years ago, that is, the Republika Srpska Law on Defamation protection eleven years ago. In addition to the general positions uniform in the judicial practice so far, specific cases will be analyzed, the explanations of which give a clear insight into the positions of the Bosnian jurisprudence. The number of judgments in civil cases before and after the adoption of the FBiH Defamation Law in 2002 will be investigated in particular, in order to determine the consequences of the decriminalization of this institute in our country. Based on an insight into the judgments, an analysis will be made of the circumstances of specific cases that, at the discretion of the courts, justify compensation, the forms of damage repair in cases of violation of the right to honor and reputation that the courts most often choose, and the methods of proving and measuring the amount of damage in practice.

On the basis of the obtained data, a conclusion will be drawn as to whether the judiciary adequately responds to the challenges and needs imposed by the increasingly frequent violation of honor and reputation in Bosnia and Herzegovina. By analyzing the lawsuits, we will try to determine which statements, inscriptions, reports gave rise to the initiation of court proceedings, in order to conclude what is considered a violation of honor and reputation in Bosnian society in accordance with our morals and understandings. By processing court practice from different periods, we will try to draw a conclusion about how the awareness of the need to protect these rights has changed, that is, what is the relationship between specific social circumstances and the application of the norms of obligation law.

Based on the frequency of publication of corrections, answers and apologies in the domestic media based on data from the report of the Press Council of Bosnia and Herzegovina, the application and frequency of non-monetary forms of compensation in the print media in BiH will be statistically presented. The goal is to draw a conclusion about the effectiveness of self-regulation, that is, to determine to what extent it contributes to the achievement of professional journalism standards.

Courts are obliged to encourage mediation at the beginning of defamation cases, so it is important to look at the role and past practice of the Press Council of Bosnia and Herzegovina as a mediator. It will be pointed out that the out-of-court settlement of such disputes has numerous advantages for the injured party, as it allows compensation to be obtained faster (when the injured party needs it the most), without the need for litigation and respecting the principles of economy (savings on court costs and interest).

Project team members:

Ph.D. Maja Colaković

M.Sc. Lana Bubalo

Bachelor of Laws Suncica Vejzović