Medijski sporovi u BiH: Deset godina sudske prakse u sporovima za zaštitu od klevete
Media Disputes in BiH: Ten Years of Judicial Practice in Defamation Protection Disputes

Author(s): Amela Kadrić
Subject(s): Law, Constitution, Jurisprudence, Media studies, Constitutional Law, Human Rights and Humanitarian Law, Public Law, EU-Legislation
Published by: Fondacija Centar za javno pravo
Keywords: Public law; constitution; Constitutional Court; BiH; media; defamation; Defamation law; legal framework; EU; EU legislation; human rights;
Summary/Abstract: Bosnia and Herzegovina is the only country in the region which decriminalized defamation and transferred it from criminal to civil legal domain, even with certain shortcomings, has well elaborated anti-defamation acts. Although defamation laws exist at three levels: FB&H, RS and BDB&H, they are harmonized and provide same protection. In past 10 years, since Defamation law was enacted in the Federation, well established case-law has been developed. However, there are some differencies in the case-law of FB&H, RS and BDB&H courts, which might raise concerns as to equal protection of human rights as set forth in the ECHR. Problem of identification of libeled person is a very serious issue, because courts have different legal standing on this particular issue. The other problem is of the question of responsibility of libeler, on which courts also have different opinions. Some courts consider that person who gave information to the author of the text published in media cannot be responsible for defamation, while other courts take different position. It would be highly recommended that the case-law in respect of these problems becomes as harmonized as possible. Another problem is the issues of interim measures. Author argues that statutory provisions are imprecise and incomplete and that it is difficult for courts to utilize these provisions due to imprecise definitions. Author also argues that the use of medical expert witnesses – neuropsychiatrists - in order to decide on non-pecuniary damages if defamation is established, creates further problems and is contrary to the European Court’s and B&H Constitutional Courts’s case-law. Furthermore, this often leads to unnecessary delays in court procedure which is in case of defamation urgent ex lege. Therefore, the author argues that this problem might be overcome by stricter application of ECHR standards in relation to this issue, which will also contribute to the speedy resolution of such cases.

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