FOURTH SECTION
\nDECISION
\nApplication no. 48657\/16
\nAbedin SMAJI\u0106
\nagainst Bosnia and Herzegovina<\/p>\n
The European Court of Human Rights (Fourth Section), sitting on 16\u00a0January 2018 as a Committee composed of:<\/p>\n
Carlo Ranzoni, President,
\nFaris Vehabovi\u0107,
\nP\u00e9ter Paczolay, judges,<\/p>\n
and Andrea Tamietti, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 29 July 2016,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Abedin Smaji\u0107, is a citizen of Bosnia and Herzegovina who was born in 1984 and lives in the Br\u010dko District (\u201cBD\u201d). He was represented before the Court by Mr O. Mulahalilovi\u0107, a lawyer practising in BD.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 2.\u00a0\u00a0The facts of the case, as submitted by the applicant, may be summarised as follows.<\/p>\n 3.\u00a0\u00a0The applicant is a lawyer. On 12 March 2010 he was arrested on suspicion of inciting national, racial and religious hatred, discord or intolerance.<\/p>\n 4.\u00a0\u00a0On the same day the applicant was questioned at the BD police station. Before the questioning, the applicant was informed of the rights of arrested persons, in accordance with Article 78 of the 2003 BD Code of Criminal Procedure (see paragraph 14 below) and signed a form according to which he stated that he did not require legal assistance.<\/p>\n 5.\u00a0\u00a0On 30 January 2012 the BD Basic Court(Osnovni sud Br\u010dko Distrikta) found the applicant guilty of inciting national, racial and religious hatred, discord or intolerance and sentenced him to one year\u2019s imprisonment, suspended for a period of three years. In accordance with Article 160 \u00a7 4 of the 2003 BD Criminal Code the applicant\u2019s personal computer and his laptop were seized (see paragraph 13 below). Furthermore, the applicant was ordered to pay 100 convertible marks (BAM \u2013 approximately 50 euros (EUR)) in legal costs. The court found that between 3 January and 24 February 2010 the applicant, using a pseudonym, had made a number of posts on the publicly accessible Internet forum of a website called Bosnahistorija in which he made statements as to the course of action to be undertaken by Bosniac[1] citizens of BD in the event of a war and the secession of the Republika Srpska (one of the two constituent entities of Bosnia and Herzegovina). The applicant made, inter alia, the following statements:<\/p>\n \u201c … I also think that Ivi\u0107i is key for Bosniacs, because it is a natural elevation in the Br\u010dko plain and [from there] the whole city [is visible] as if [lying] on the palm of a hand; to have Ivi\u0107i in war is an advantage … because from there it is possible to shell the city with anything. (I will soon take some photos of the view of the city from Ivi\u0107i.) …<\/p>\n I will post photos soon; now I am busy working … there will be this stinking Christmas soon and it is a public holiday in Br\u010dko so I will [have time] to take photos … if we organise ourselves they stand no chance of taking over Br\u010dko. … Ili\u0107ka settlement \u2013 which has around 3,500 to 5,000 Serbs[2] \u2013 is problematic … Ili\u0107ka and Gr\u010dica should be struck at first, as these are two key Serb settlements. It is easy to attack Gr\u010dica because there are some Bosniacs there, whereas Ili\u0107ka is problematic as it has no physical contact with any Bosniac settlement. In any military scenario we should first strike at Bukvik, Gajeve and Cerik and get rid of the danger behind our backs, the same as we did in 1992 … once we have dealt with those Serb villages we will have a free corridor towards Grada\u010dac and Srebrenik. Then, in my opinion, we should attack Gr\u010dica and Srpska Varo\u0161 … the city centre should then be slowly cleansed because there are many buildings and there is a risk of heavy losses …<\/p>\n … Serbs who came from different shitholes live there; there is [only a very small native] population … Ili\u0107ka is a settlement [which consists mostly] of radical-thinking Serbs who would be the first to concoct [a fight] with Bosniacs from Br\u010dko and which, in the event of any scenarios [involving secession] from [Republika Srpska] should be attacked and neutralised first … \u201c<\/p>\n 6.\u00a0\u00a0The applicant did not deny making those statements. The Basic Court concluded that by writing such posts on the Internet, which it considered to be a public place within the meaning of the criminal offence in question, the applicant had disturbed interethnic relations between the \u201cconstituent peoples\u201d (persons who declare affiliation with Bosniacs, Croats[3] and Serbs) that live in BD.<\/p>\n 7.\u00a0\u00a0Both the applicant and the prosecutor appealed against that judgment. The applicant argued that the elements of the criminal offence in question had not been committed, since a \u201cclosed forum\u201d on the Internet could not be considered to constitute a \u201cpublic place\u201d. He further claimed that he had not incited hatred, but had only expressed his personal opinion in relation to a hypothetical scenario which had a correlation to the \u201creal world\u201d \u2013 namely, frequent calls by the highest political authorities in the Republika Srpska for secession. Moreover, the applicant indicated that the case had attracted media attention only after it had been publicised by the prosecutor and subsequently reported in several daily national newspapers. The applicant further alleged that his right to legal assistance had not been respected the first time he had been questioned by the police on 12 March 2010 (see paragraph 4 above). In that respect the applicant claimed that on that day at around 4.30 p.m., Mr Mulahalilovi\u0107, the applicant\u2019s current representative, had telephoned the police station but had been informed that the applicant was not there. At around 5.30 p.m. the same day Mr Mulahalilovi\u0107 had come to the police station and found out that the applicant had been questioned. The applicant alleged that after he had spoken to Mr\u00a0Mulahalilovi\u0107, he had decided to no longer submit to questioning.<\/p>\n 8.\u00a0\u00a0On 28\u00a0November 2012 the BD Appellate Court (Apelacioni sud Br\u010dko Distrikta) upheld the judgment of the Basic Court of 30 January 2012. As regards the applicant\u2019s right to legal assistance, the Appellate Court concluded from the record of the questioning of 12\u00a0March 2010 that, before being questioned, the applicant had been informed of the rights of arrested persons, in accordance with Article 78 of the 2003 BD Code of Criminal Procedure of (see paragraph 14 below) and had signed a form stating that he did not require legal assistance. The court also established that during further questioning and the rest of the proceedings the applicant had been represented by his chosen lawyer. In these circumstances it was irrelevant whether Mr Mulahalilovi\u0107 \u2013 at the time in question \u201cthe applicant\u2019s future defence counsel\u201d \u2013 had called the police at the time of the first round of questioning. The applicant had waived his right to legal assistance during his first round of questioning and there had been nothing in the file to indicate that his defence rights had not been respected.<\/p>\n 9.\u00a0\u00a0As regards the interpretation of the relevant law, the Appellate Court concluded, on the basis of expert witnesses\u2019 statements, that the Internet forum had been \u201cclosed\u201d only in respect of participation, since that act had required registration, but that the contents had been fully available for access by anyone, and could thus be considered a \u201cpublic place\u201d. It also concluded that for the element of the crime of incitement to hatred or intolerance to obtain it was not necessary for the applicant\u2019s action actually to have had negative consequences, but only that they had been \u201cobjectively capable of producing such effects\u201d. The Appellate Court agreed that the posts had been written in a hypothetical form (that is to say in respect of a war scenario that had little possibility of realisation). However, taking into account the full content of the posts, the court concluded that they could not be considered to constitute the expression of free thought on topical matters of general interest, but rather a highly inappropriate form of dialogue advocating a strategy of behaviour towards one of the ethnic groups in BD. The applicant had used expressions which were highly insulting to members of an ethnic group, such as \u201cthis stinking Christmas\u201d, \u201cget rid of the danger behind our backs\u201d, \u201cthe city centre should then be slowly cleansed\u201d and \u201cSerbs who came from different shitholes live there\u201d. The court held that the applicant\u2019s claim that the police and the prosecutor had given his statements to the media only in order to be able to stage his prosecution was totally unsubstantiated and stemmed from the misinterpretation of the limits of freedom of expression. It concluded that freedom of expression was significantly reduced in multi-ethnic communities, particularly when it resulted in offending the religious or national feelings of the members of religious or ethnic groups in such communities.<\/p>\n 10.\u00a0\u00a0On 30 January 2013 the applicant lodged a constitutional appeal, relying on Articles 6, 9, 10 and 14 of the Convention. As to the complaints under Articles 6 and 10, the applicant essentially relied on the same arguments as those indicated in his appeal to the Appellate Court (see paragraph 7 above).<\/p>\n 11.\u00a0\u00a0On 20 April 2016 the Constitutional Court of Bosnia and Herzegovina (\u201cthe Constitutional Court\u201d) rejected the applicant\u2019s appeal as manifestly ill-founded. The court held that the Basic Court and the Appellate Court had correctly applied both the procedural and the substantive law and had given well-reasoned and detailed decisions. The Basic Court had described the method by which it had assessed the evidence and had established the facts, which did not appear arbitrary. Moreover, both lower courts had described in a detailed and clear manner what constituted the elements of the criminal offence in question concerning the applicant\u2019s actions and had addressed all the applicant\u2019s arguments. They had also given sufficient and relevant reasons for finding the applicant guilty. As regards the right of defence, the Constitutional Court agreed that the applicant\u2019s right to legal assistance had not been restricted. The applicant had been informed of his rights before the questioning and had signed a form according to which he had stated that he did not require legal assistance. He had not asked for Mr Mulahalilovi\u0107. Furthermore, the applicant had not claimed that he had made any incriminating statement during the first round of questioning that had been used to convict him. The Constitutional Court concluded, having assessed the overall fairness of the proceedings, that there had been no violation of the applicant\u2019s defence rights.<\/p>\n 12.\u00a0\u00a0The Constitutional Court furthermore rejected as manifestly ill-founded the applicant\u2019s complaint under Article 10. It reiterated that freedom of expression, although wide, could be subject to restrictions provided for by Article 10\u00a0\u00a7\u00a02. In finding the applicant guilty of inciting national, racial and religious hatred, discord or intolerance, the lower courts had applied standards which had been in conformity with the domestic law and the Convention. Referring to Pavel Ivanov v. Russia ((dec.), no.\u00a035222\/04, 20\u00a0February 2007), the Constitutional Court held that in the circumstances the applicant could not benefit from the protection afforded by Article 10 of the Convention. Accordingly, after examining whether the lower courts had correctly applied the criminal law and had given sufficient and relevant reasons for the applicant\u2019s conviction under Article 6 of the Convention, it decided to reject this complaint as manifestly ill-founded. Lastly, the court held that there had been no reason to examine separately the complaints under Articles 9 and 14 of the Convention, as the applicant had merely invoked them without any further substantiation.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 13.\u00a0\u00a0 Article 160 of the 2003 BD Criminal Code (Krivi\u010dni Zakon Br\u010dko Distrikta, BD Official Gazette nos. 10\/03, 45\/04, 6\/05, 21\/10, 9\/13, 33\/13 and 26\/16), in so far as relevant, reads:<\/p>\n \u201c(1) Any person who incites or stirs up national, racial or religious hatred, discord or intolerance among the constituent peoples and others living in Br\u010dko District [may] be punished by a custodial sentence of no less than one year and not exceeding five years.<\/p>\n …<\/p>\n (4) Materials and items which transmit the [kind of] messages listed in paragraph\u00a01\u00a0of this Article, as well as the tools for their production, multiplication or dissemination, will be seized\u201d.<\/p>\n 14.\u00a0\u00a0Article 78 of the 2003 BD Code of Criminal Procedure (Zakon o krivi\u010dnom postupkuBr\u010dko Distrikta, BD Official Gazette nos. 10\/03, 48\/04, 6\/05, 14\/07, 19\/07, 21\/07, 2\/08, 17\/09 and 9\/13), in so far as relevant, reads:<\/p>\n \u201c(2) At the beginning of questioning, a suspect shall be informed of the charge against him and the grounds for the charge, and shall be informed of the following rights:<\/p>\n (a) the right not to present evidence or answer questions;<\/p>\n (b) the right to retain defence counsel of his own choosing, who may be present at questioning, and the right to free legal assistance in cases provided for in this Code;<\/p>\n (c) the right to comment on the charges against him, and to present all facts and evidence in his favour; … if he does so in the presence of a defence counsel, the statement made is allowed as evidence at the main trial and may, without his consent, be read and used at the main trial;<\/p>\n …<\/p>\n (3) A suspect may voluntarily waive the rights listed in paragraph 2 of this Article but his questioning may not commence unless his waiver has been officially recorded and signed by him …<\/p>\n (4) … when a suspect has waived the right to legal assistance, but has later expressed a wish to retain defence counsel, the questioning shall be immediately suspended and shall resume when the suspect has retained or has been appointed a defence counsel, or if he has expressed a wish to answer the questions.<\/p>\n …<\/p>\n (6) If any actions have been taken contrary to the provisions of this Article, the court\u2019s decision may not be based on a suspect\u2019s statement.\u201d<\/p>\n COMPLAINTS<\/strong><\/p>\n 15.\u00a0\u00a0The applicant alleged that he had been denied access to a lawyer during his first questioning at the police station because his lawyer had telephoned the police station but had been told that the applicant was not there. He furthermore complained that the domestic courts had arbitrarily interpreted the relevant law, in breach of his right to a fair trial. In respect of these complaints, the applicant relied on Article 6\u00a0\u00a7\u00a7\u00a01 and 3 (c) of the Convention.<\/p>\n 16.\u00a0\u00a0The applicant also complained that his criminal conviction for the statements he had made in postings on the Internet forum had been in breach of his right to freedom of expression, as guaranteed by Article 10 of the Convention. He finally invoked Articles 9 and 14 of the Convention.<\/p>\n THE LAW<\/strong><\/p>\n A. Complaints under Article 6 of the Convention<\/strong><\/p>\n 17.\u00a0\u00a0The applicant alleged a breach of his rights under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention which, in so far as relevant, reads as follows:<\/p>\n \u201c1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n 3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (c)\u00a0\u00a0to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;<\/p>\n … \u201d<\/p>\n 1. Alleged denial of access to a lawyer<\/em><\/p>\n 18.\u00a0\u00a0The applicant submitted that on 12 March 2010 he had been questioned without the presence of a lawyer. Although Mr\u00a0Mulahalilovi\u0107 had called the police station before the questioning and had enquired after the applicant, he had been informed that the applicant was not there. In support of this claim the applicant submitted Mr\u00a0Mulahalilovi\u0107\u2019s mobile phone record for March 2010 and a note he had made of the phone call in question.<\/p>\n 19.\u00a0\u00a0The Court recalls that Article 6 \u00a7 1 of the Convention requires that, as a rule, access to a lawyer should be provided from the first time a suspect is questioned by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify the denial of access to a lawyer, such a restriction \u2013 whatever its justification \u2013 must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391\/02, \u00a7 55, 27 November 2008, and Dvorski v. Croatia [GC], no. 25703\/11, \u00a7 80, ECHR 2015).<\/p>\n 20.\u00a0\u00a0Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner, must not run counter to any important public interest and must be attended by minimum safeguards commensurate with its importance. Furthermore, it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no. 56581\/00, \u00a7\u00a086, ECHR 2006-II). For a waiver to be effective it must be shown that the applicant could reasonably have foreseen the consequences of his conduct (see Idalov v. Russia [GC], no. 5826\/03, \u00a7 173, 22 May 2012; Sejdovic, cited above, \u00a7 87; and Jones v.\u00a0the United Kingdom(dec.), no. 30900\/02, 9\u00a0September 2003). The right to counsel, being a fundamental right among those which constitute the notion of a fair trial and ensuring the effectiveness of the rest of the guarantees set forth in Article 6 of the Convention, is a prime example of those rights which require the special protection of the \u201cknowing and intelligent waiver\u201d standard established in the Court\u2019s case-law (see\u00a0Dvorski, cited above, \u00a7\u00a0101).<\/p>\n 21.\u00a0\u00a0Turning to the present case, the Court notes that the Appellate Court and the Constitutional Court examined this complaint and established that before the questioning of 12 March 2010 the applicant was informed of his rights and signed a form stating that he did not require legal assistance (see\u00a0paragraphs 4, 8 and 11\u00a0above). The Constitutional Court furthermore emphasised the fact that that questioning had not resulted in any specific incriminating evidence against the applicant. Looking at the overall fairness of the proceedings, it concluded that the applicant\u2019s right to legal assistance had not been restricted (see paragraph 11 above). The Court does not see any reason to disagree with these findings. It further notes that there is no suggestion of any compulsion having been exerted in the course of the questioning.<\/p>\n 22.\u00a0\u00a0As to the applicant\u2019s claim that Mr Mulahalilovi\u0107 was misinformed of his whereabouts when he phoned the police (see paragraph 7 above), the Court notes that the applicant did not ask for Mr Mulahalilovi\u0107 or any other lawyer to be present at the questioning of 12\u00a0March 2010. Furthermore, there is no indication in the case file as to whether at that time Mr\u00a0Mulahalilovi\u0107 was already the applicant\u2019s lawyer. The applicant did not indicate that he, or a member of his family, had given a power of attorney to Mr Mulahalilovi\u0107 prior to his arrest on 12\u00a0March 2010 (contrast, mutatis mutandis, Dvorski, cited above \u00a7 90). In these circumstances, the Court considers that the applicant, who was a lawyer himself, unequivocally waived his right to legal assistance.<\/p>\n 23.\u00a0\u00a0Therefore, this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35\u00a0\u00a7\u00a7 3 (a) and 4\u00a0of the Convention.<\/p>\n 2. Alleged arbitrary interpretation of domestic law<\/em><\/p>\n 24.\u00a0\u00a0The applicant argued that the domestic courts had arbitrarily interpreted the relevant domestic law in finding that his actions had resulted in criminal liability for the offence of inciting national, racial and religious hatred, discord or intolerance.<\/p>\n 25.\u00a0\u00a0The Court reiterates that it is not its task to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention \u2013 for instance where, in exceptional cases, such errors may be said to constitute \u201cunfairness\u201d incompatible with Article 6 of the Convention (see\u00a0Bochan\u00a0v.\u00a0Ukraine (no.\u00a02) [GC], no. 22251\/08, \u00a7 61, ECHR 2015, and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867\/12, \u00a7 83, 11\u00a0July\u00a02017).<\/p>\n 26.\u00a0\u00a0Article 6 \u00a7 1 of the Convention does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts. Normally, issues such as the weight attached by the national courts to particular items of evidence or to findings or assessments submitted to them for consideration are not for the Court to review. The Court should not act as a fourth-instance body and will therefore not question under Article\u00a06\u00a0\u00a7 1 the national courts\u2019 assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan, cited above, \u00a7\u00a061, and Moreira Ferreira, cited above, \u00a7 83).<\/p>\n 27.\u00a0\u00a0In the present case the Court does not see any factor by which it can be established that the applicant\u2019s right to a fair trial was infringed. The mere fact that the applicant disagreed with the courts\u2019 decisions does not suffice for it to be concluded that the proceedings were not fair. The Court notes that the Constitutional Court, which had jurisdiction to quash the impugned decisions and remit the case for retrial, examined this complaint and rejected it as manifestly ill-founded (see paragraph 11 above). In so doing it held that the lower courts had correctly applied both the procedural and the substantive law and had given well-reasoned and detailed decisions. The Court does not see any reason to depart from these findings. It is satisfied that in the present case the domestic courts\u2019 application of domestic law was neither arbitrary nor manifestly unreasonable.<\/p>\n 28. It follows that this complaint is also manifestly ill-founded and must therefore be rejected, in accordance with Article 35\u00a0\u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n B. Complaint under Article 10 of the Convention<\/strong><\/p>\n 29.\u00a0\u00a0The applicant complained that his conviction for expressing his opinion on a matter of public concern had violated his rights, as guaranteed by Article 10, which reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone 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.<\/p>\n 2.\u00a0\u00a0The 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 rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\u201d<\/p>\n 30.\u00a0\u00a0The applicant argued that his intention had not been to incite national, racial and religious hatred, discord or intolerance, but to express his own opinion on a matter of public concern. He had only been reacting to frequent calls for secession by the highest political authorities in the Republika Srpska.<\/p>\n 31. The Court notes that the applicant\u2019s conviction amounted to an \u201cinterference\u201d with his right to freedom of expression. An interference contravenes Article 10 of the Convention unless it is \u201cprescribed by law\u201d, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10, and is \u201cnecessary in a democratic society\u201d for achieving such an aim or aims.<\/p>\n 32.\u00a0\u00a0The interference in the present case was prescribed by law; namely, it was based on Article 160 \u00a7 1 of the 2003 BD Criminal Code (see paragraph 13 above). Furthermore, the Court is satisfied that it pursued at least one of the legitimate aims referred to in Article 10 \u00a7 2 \u2013 namely the protection of the reputation and rights of others.<\/p>\n 33.\u00a0\u00a0The Court reiterates that freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual\u2019s self-fulfilment. Subject to Article\u00a010 \u00a7 2, it applies not only to \u201cinformation\u201d or \u201cideas\u201d that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no \u201cdemocratic society\u201d. As set forth in Article 10, this freedom is subject to exceptions, but these must be construed strictly, and the need for any restrictions must be established convincingly (see Perin\u00e7ek v. Switzerland [GC], no. 27510\/08, \u00a7\u00a0196 (i), ECHR 2015 (extracts)).<\/p>\n 34.\u00a0\u00a0The Court notes at the outset that it is not its task to rule on the constituent elements of the offence of which the applicant was convicted under domestic law by reviewing whether those elements actually arose from his actions (see, mutatis mutandis, Pavel Ivanov v. Russia (dec.), no.\u00a035222\/04, 20\u00a0February 2007, and Belkacem v. Belgium (dec.), no.\u00a034367\/14, \u00a7 29, 27 June 2017). The Court\u2019s task is not to take the place of the competent national authorities but to review the decisions that they made under Article 10. What the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the comments held against the applicant and the context in which he made them (see Cump\u01cen\u01ce and Maz\u01cere v. Romania [GC], no.\u00a033348\/96, \u00a7\u00a089, ECHR 2004-XI).<\/p>\n 35.\u00a0\u00a0The Court should determine whether the interference was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it were relevant and sufficient. In doing so, it has to satisfy itself that these authorities applied standards which were in conformity with the principles embodied in Article 10 and relied on an acceptable assessment of the relevant facts. (seePerin\u00e7ek, cited above, \u00a7 196 (iii)).<\/p>\n 36.\u00a0\u00a0Turning to the present case, the Court notes that the applicant wrote a number of posts on a publicly accessible Internet forum in which he described military action to be undertaken against Serb villages and neighbourhoods in the BD region in the event of war caused by the Republika Srpska\u2019s secession. In the domestic courts\u2019 view those posts contained the constituent elements of the offence of inciting to national, racial and religious hatred, discord or intolerance (see paragraphs 5, 6 and 9\u00a0above).<\/p>\n 37.\u00a0\u00a0The Appellate Court accepted that the posts were written in a hypothetical form (that is to say in respect of a war scenario that had little possibility of realisation). However, taking into account the content of the posts, it concluded that they could not be considered to constitute the expression of free thought on topical matters of general interest, but rather a highly inappropriate form of dialogue advocating a strategy of behaviour towards one of the ethnic groups in BD. Furthermore, it held that the applicant had used expressions which were highly insulting to members of an ethnic group (see paragraph 9 above). The Constitutional Court, which \u2013 as already stated above in relation to Article 6 (see paragraph 27 above) \u2013 had jurisdiction to quash the lower courts\u2019 decisions and remit the case for retrial \u2013 endorsed this reasoning as relevant and sufficient (see\u00a0paragraph\u00a012\u00a0above).<\/p>\n 38.\u00a0\u00a0In this respect, the Court reiterates that the domestic authorities are better placed to examine and interpret the facts and to apply the national legislation (see, mutatis mutandis, Dilek Aslanv. Turkey, no. 34364\/08, \u00a7\u00a076, 20 October 2015).<\/p>\n 39.\u00a0\u00a0The Court notes that the subject of the applicant\u2019s posts, even if written in a hypothetical form, had touched upon the very sensitive matter of the ethnic relations in post-conflict Bosnian society. Furthermore, the domestic courts examined the case with care and in conformity with the principles embodied in Article 10 and gave relevant and sufficient reasons for the applicant\u2019s conviction.<\/p>\n 40.\u00a0\u00a0Finally, the Court reiterates that the nature and weight of the penalties imposed are also factors to be taken into consideration when measuring the proportionality of the interference (see S\u00fcrek v. Turkey(no.\u00a01) [GC], no. 26682\/95, \u00a7 64, ECHR 1999-IV). In the present case the Court notes that the maximum penalty for the criminal offence in question was five years\u2019 imprisonment. The applicant was sentenced to one year\u2019s imprisonment, suspended for a period of three years and his personal computer and a laptop were seized (see paragraph 5\u00a0above). In the circumstances of the present case, the Court does not find the penalties imposed to have been disproportionate.<\/p>\n 41.\u00a0\u00a0Therefore, having regard to the circumstances of the present case, the Court considers that the interference with the applicant\u2019s right to freedom of expression does not disclose any appearance of violation of Article 10 of the Convention.<\/p>\n 42.\u00a0\u00a0Accordingly, this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35\u00a0\u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n C. Other complaints<\/strong><\/p>\n 43.\u00a0\u00a0The Court examined the applicant\u2019s remaining complaints under Articles 9 and 14 of the Convention. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court\u2019s jurisdiction, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that these complaints must also be rejected as being manifestly ill-founded, pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 8 February 2018.<\/p>\n Andrea Tamietti\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Carlo Ranzoni _____________<\/p>\n [1] Bosniacs were known as Muslims until the 1992-95 war. The term \u201cBosniacs\u201d (Bo\u0161njaci) should not be confused with the term \u201cBosnians\u201d (Bosanci) which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin.
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
\n[2]Serbs are an ethnic group whose members may be natives of Serbia or of any other State of the former Yugoslavia. The term \u201cSerb\u201d is normally used to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with the term \u201cSerbian\u201d which normally refers to nationals of Serbia.
\n[3]Croats are an ethnic group whose members may be natives of Croatia or of any other State of the former Yugoslavia. The term \u201cCroat\u201d is normally used to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with the term \u201cCroatian\u201d which normally refers to nationals of Croatia.<\/p>\n