The fact that the criminal offence of hate speech is not precisely defined in BiH does not mean that the BiH judiciary should not uphold international standards and practices in sanctioning hate speech and incitement to violence against people on the move.
Fatmir Alispahić, the editor and owner of the Antimigrant.ba portal, was acquitted by a first instance verdict before the Court of Bosnia and Herzegovina on charges of spreading national, racial and religious hatred and intolerance. The Coalition Against Hate Speech and Hate Crimes expresses great disappointment and concern about the acquittal in favour of Fatmir Alispahić, by which the highest judicial institution in the country showed unacceptable tolerance towards the spread of hate speech, its non-recognition and impunity.
The Coalition also expresses public disagreement with the Court of BiH due to the limited and selective interpretation of Article 145a of the BiH Criminal Code, which the Court applies exclusively to the constituent peoples of BiH, ignoring the fact that non-constituent peoples also live in BiH, but also ignoring paragraph 2 of Article 145, which clearly states: “Whoever publicly incites violence or hatred directed against a group of persons or a member of a group determined by race, colour, religion, social origin or national or ethnic background, if such conduct does not constitute a criminal offence referred to in paragraph (1) of this Article, shall be punished by imprisonment for a term between three months and three years.”
In the explanation for the judgement, the Court of BiH, among other things, states that the Prosecution has not proved that Alispahić committed the criminal offence of inciting national, racial and religious hatred and intolerance. “The court found that the statements were addressed directly to migrants, and that the constituent peoples of BiH were only brought in connection with the statements; that the statements were within the framework of a political, journalistic, free narrative, protected by the freedom of speech in BiH. The analysis of the evidence showed that the statements sent to the ‘migrants’ did not refer to any particular nation, race, religion or other specific group,” the verdict reads.
By acquitting in this case and selectively interpreting Article 145a of the BiH CC, the Court of BiH dehumanized persons on the move, completely ignoring their nationality, religion and race in the context of interpreting and understanding the consequences of hate speech on this vulnerable group, and viewing them as persons without their own specifics, without rights and legal protection. Hate speech on the online media outlet Antimigrant.ba addressed to people on the move has its basis precisely in the fact that people on the move do not belong to the constituent peoples of BiH but to other peoples, other races and other ethnicities, which was the basis (context) for generating intolerance and expression and inciting hatred towards them.
This judgment of the Court of BiH creates a public image that the freedom of speech is an absolute right, and ignores the fact that Article 10, paragraph 2, of the European Convention on Human Rights, states that freedom of speech is subject to legitimate restrictions in order to prevent violations of fundamental human rights: dignity, security of certain social groups and provide for their protection due to their individual characteristics or common / group identity. The Coalition Against Hate Speech and Hate Crimes notes that hate speech on any grounds (in this case on the grounds of race, ethnicity, religion and country of origin) encourages and inspires people to commit serious crimes with potentially serious consequences for those targeted by it.
The Court of BiH also did not take into account the fact that the very name of the media outlet – ANTIMIGRANT – clearly indicates that its main mission is to provoke hatred towards people on the move among the general public in BiH. Incitement to hatred was further “boosted” by Alispahić with a series of texts and publications on this portal, which the Court of BiH did not study with due care or accept as credible evidence of the content and intent of hateful messages. We remind the public and the Court of BiH that the existence of hateful messages in the author’s texts on the Antimigrant portal was previously proven by professional media organizations such as the Press and Online Media Council in BiH. It is a sad and legally unsustainable practice that explicit hate messages towards people on the move were not taken seriously enough, as they were “only brought in connection” to the constituent peoples, as if the three constituent peoples in BiH had the exclusive right to protection in cases of being targeted by hatred.
This first instance verdict of the Court of BiH also exposed the urgency of changes in criminal legislation in Bosnia and Herzegovina, which would include recognizing and sanctioning hate speech and hate crimes against all vulnerable groups in our society, but also the necessary education of judges and prosecutors to recognize and adequately sanction hate speech in accordance with the standards of the Council of Europe. The Coalition Against Hate Speech and Hate Crimes condemns all hate speech against people on the move and other vulnerable groups in BiH and calls on the media to adhere to professional standards when reporting on people on the move and other vulnerable groups.
The Coalition Against Hate Speech and Hate Crimes was formed in early 2013 to advocate for the improvement of the legislative framework, the purpose of which is to combat and sanction cases of hate speech and hate crimes. In addition to adequate regulation, the Coalition advocates for the implementation of existing laws that partially or fully regulate these issues (criminal codes of the Brčko District, FBiH and RS, the Law on Prohibition of Discrimination in BiH), and actively works to raise public awareness about what constitutes a hate crime and hate speech, about their serious and harmful consequences for the society of BiH.
The Coalition brings together thirteen non-governmental organizations that have been active in promoting and protecting human rights for many years: the Association for Democratic Initiatives (Sarajevo), Centre for Youth KVART (Prijedor), Civil Rights Defenders (Sarajevo office), CURE Foundation (Sarajevo), Foundation Mediacentar Sarajevo (Sarajevo), the Youth Initiative for Human Rights in BiH (Sarajevo), Otaharin (Bijeljina), Youth Press Association of Bosnia and Herzegovina (ONA) from Sarajevo, Sarajevo Open Centre (Sarajevo), BH Journalists Association (Sarajevo), Tuzla Open Centre (Tuzla), Network for Building Peaceand the Press and Online Media Council in BiH (Sarajevo).