Freedom of expression (Article 10 of the ECHR)

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In Case No. CH/01/7248-A&M, the first time after the entry into force of the Dayton Agreement, a constitutional dispute arose as to the scope of the protection of freedom of expression under Article 10 of the ECHR. In 1999, the Independent Media Commission, which was later succeeded by the Communications Regulatory Agency, took a decision suspending a provisional broadcasting license to a private radio and television station in Banja Luka named “ORDO” RTV Sveti Georgije. This provisional license was thereafter renewed. However, in 2001, RTV Sveti Georgije again violated the applicable provisions of the Broadcasting Code of Practice and the Terms and Conditions of its license. Immediate cause for those new violations and a temporary revocation of a provisional broadcasting license was a live call-in television programme entitled “These are the fruits of our battle”, broadcast on 8 May 2001 from Banja Luka, concerning protests against the groundbreaking ceremony for the laying of the cornerstone to reconstruct the former Ferhadija mosque. The moderator of RTV Sveti Georgije allowed not only his studio guest but also his many viewers, who called in, to express their tendentious and inciting opinions and comments live on the air. As a result, call-in viewers, amongst other things, invited citizens to take part in protests against the groundbreaking ceremony for the laying of the cornerstone of the Ferhadija mosque. In addition, some callers expressed criticism and insults against Muslim believers, their representatives and representatives of the Islamic Community. In principle, the position taken by call-in viewers, also agreed to by the studio guest, was that the protests were provoked because the groundbreaking ceremony for the laying of the cornerstone to reconstruct the Ferhadija mosque was planned on St. George’s Day, a major Orthodox religious holiday.¹⁶⁵¹