In December 2023, Radmila Mandić, a judge of the Široki Brijeg Municipal Court, ruled that the Center for Investigative Reporting (CIN) is obligated to compensate BAM 4,000 in damages to company Lager from Posušje for defamation. Additionally, CIN is required to remove investigative stories ‘Lager’s faulty goods’ and ‘Stockpiling concessions’ from its portal, which discuss the business practices of the company. CIN has appealed the decision to the Cantonal Court in Široki Brijeg.
Against a brief review of the text that was the subject of Lager’s lawsuit, judge Mandić in her decision mostly referred to the contents that CIN never published: video footage by the online magazine Žurnal titled Kamengrad mine – pollution of the Bliha river and surrounding villages, and parts from the related story about poor quality coal mining in Sanski Most municipality, pollution of the surrounding villages, river and air – Lager Company Endangers the Population of Kamengrad: If the excavators start digging, these hills will slide down, and Although Lager is under investigation by USKOK: EP BiH will pay the company from Posušje 105 million marks for coal procurement”.
Judge Mandić found CIN’s investigation findings about Lager’s business “prejudging the substance of the cases” because no court has conclusively established them through a final verdict.
“Regarding the allegations about Tesab stone crushers and the company Paloč, which the defendant [CIN] claims to have published based on court documentation from a litigation case in the Municipal Court in Sarajevo (…) in which it heard testimonies from litigation parties and witnesses, the findings from expert witnesses in mechanics and economy, and having been to the site to see the machine in question, since the liability of Lager has not been conclusively determined by a final decision, it can be said that these allegations amount to prejudging the substance of the case, which is inadmissible.”
“Such a stance, if accepted, would practically mean that journalists are not allowed to write or report or provide a critical review on anything that has not already been conclusively determined by a final court judgment”, said CIN’s lawyer, Ilvana Bijedić, concluding that the verdict is unlawful as it was issued in violation of several significant procedural requirements: “The verdict does not contain an assessment of the evidence presented in the proceedings.”
Judge Mandić asserted that CIN “attacked Lager with defamatory information” and portrayed the company in a negative context, “marking it as an economic entity under USKOK investigation for bribery” and one that “performs its activity (coal mining) poorly and unprofessionally (…) yet, despite all these “facts”, the publicly-owned company Elektroprivreda awarded it a contract for the procurement of a significant amount of coal.”
Based on the foregoing, judge Mandić concluded that ‘the truthfulness of the claims in the articles cannot be established ‘based on the presented evidence’. Yet, the evidence to which Judge Mandić referred were not part of the evidence in our case. Apart from the fact that they were not the subject of the lawsuit – because the content belonged to another media outlet – these texts were not even mentioned during the court proceedings.
In an attempt to understand a series of unclear and illogical statements from the judgment of the Municipal Court in Široki Brijeg, the CIN’s editorial team has found that this court had issued first instance judgment against Žurnal three months before the judgment against CIN. Lager had sued this portal for defamation in one of their articles that Judge Mandić quoted in the judgment against CIN.
Having compared the verdicts, journalists found that Judge Mandić largely copied the decision of Judge Snježana Parlain, whose conclusions thus ended up in the judgment against CIN.
In her decision from September 2023, judge Parlain held Žurnal liable for defamation against Lager, ordering them to pay the company BAM 1,000 in damages and remove the story from the portal. Žurnal appealed this decision to the Cantonal Court in Široki Brijeg.
In addition to these two first-instance decisions, between September and December 2023, the courts in Široki Brijeg also issued a final verdict against the portal Inforadar, which also reported on this Posušje-based company. The 2021 verdict from Judge Parlain mandating the payment of BAM 2,000 in damages to Lager and the removal of the article from the portal was upheld by the Cantonal Court in Široki Brijeg in November 2023.
“Honestly, right from the beginning of the process, I warned my client – and to some extent, he was aware of it – that given all the circumstances, we shouldn’t expect too much from regular courts, and that it’s highly likely that we’ll have to defend our rights before the Constitutional Court of Bosnia and Herzegovina. Unfortunately, this has proven to be true”, said Njegoš Petrović, the lawyer for Inforadar, for CIN.
Parts of this judgment were also found in the judgments against Žurnal and CIN two years later.
“It is entirely clear that the verdict in question (Lager vs CIN) cannot stand. (…) Undoubtedly, the judgment in question is the result of a “copy/paste” technique, meaning that some earlier judgment was used as a template when writing it. As a result, the judgment is full of content that has nothing to do with the merits of the dispute, concluded lawyer Ahmet Efendić.
Template for Defamation Verdict
In her verdict finding CIN guilty of defamation against Lager, Judge Radmila Mandić stated, “(…) that even after 10 months from the publication, the stories have not been removed and are still accessible to third parties.”
It was unclear to the CIN editorial team what Judge Mandić was referring to until journalists discovered that this was, in fact, a copied part from old judgments against other media outlets, which Judge Mandić failed to adapt to her case.
Indeed, an analysis of the judgments shows that the 10-month period corresponds with the time from the publication of Inforadar’s article to the issuance of the judgment against this media outlet, i.e. 10 and a half months in the case of Žurnal, which makes this information relevant for these two verdicts. However, in CIN’s case, the time between the publication of the stories and the first-instance judgment was 2.5 years. This fact points to an obvious error in the drafting of the court decision.
This is not the only worrying omission that CIN journalists have identified in the verdict. Copying a portion from the verdict against Žurnal, the judge adapted the factual description by stating that CIN did not publish Lager’s denial but she failed to modify the rest of the copied sentence, thus leaving the thought unclear in the verdict:
“In determining the amount of compensation, the court particularly valued that the plaintiff is an economic entity entitled to the protection of its reputation, that the defendant did not publish a denial but with its malicious headline (…).”
Indeed, Žurnal did publish Lager’s denial, as Judge Parlain noted in the verdict, deeming the headline “malicious.” However, three months later, judge Mandić recklessly copied this part of the verdict into the verdict against CIN without removing the part about the malicious headline.
Furthermore, according to Judge Mandić’s decision, CIN could be liable for a lower default interest to Lager because she copied this part word for word, stating that interest on the awarded damages would be calculated from November 2022 – which is when Žurnal was sued – not from June 2021 – when CIN
While repeating in the verdict that she “conscientiously and carefully evaluated all the evidence, individually and collectively”, CIN journalists have noticed that parts of the verdict containing assessments of evidence are almost identical to those in the other two verdicts.
“After evaluating the presented evidence, the court holds that the defendant’s reporting in the contested article cannot be considered objective reporting but that the defendant made defamatory statements (…) In this specific case, the defendant is deemed to have published untrue content in the contested article because it failed to prove that these were facts.”
“(…) In this sense, not only sharp but also harsh criticism is allowed, as well as the so-called “prejudiced expressions” that attract the reader’s attention to the subject under discussion or a particular standpoint. However, this by no means implies anarchy or authorizing media to ruthlessly attack the honor and reputation of an individual or publish unverified and untrue facts.”
“By publishing the contentious text and unverified and inaccurate information, the defendants identified the plaintiff as a legal entity engaged in actions that constitute criminal offenses, or at the very least misdemeanors, thus portraying him in a negative context, which constitutes an attack on his reputation.”
Attorney Jovana Kisin Zagajac said that the court is obligated to carefully reason its verdict: “On the other hand, mere copying of reasoning from other court decisions is intolerable, and calls into question the integrity and seriousness of the judiciary as a pillar of the state that must stand firmly and maintain the trust of citizens, not only trust in its impartiality but also in its quality.”
The Press Council of Bosnia and Herzegovina (BiH) believes that such examples serve to discourage journalists from doing their work. In their reaction to the verdict, they called competent authorities to respond because such decisions cast doubt on the “capacity and independence” of the judiciary.
Borka Rudić from the Association BH Journalists shares their opinion: “The only effective response would be to investigate each individual case and impose sanctions – ex officio and urgently! Because this causes immeasurable damage to the media (in this case, CIN), but also to the entire judicial community.”
According to lawyer Petrović, declaring journalists liable for defamation by copying conclusions from another case sends a clear message:
“We don’t care about the truth; we don’t care about being informed and learning about the society and environment in which we live. (…) It is important to silence the journalists, and the ideal strategy to do so is through the courts”
Before the trial in the case of Lager (Posušje) against CIN (Sarajevo), the Municipal Court in Široki Brijeg declared not to have territorial jurisdiction in this case, determining that the case would be handled by the competent Municipal Court in Sarajevo. Lager appealed this decision to the Cantonal Court in Široki Brijeg, which sent the case back to this local community.
“I am deeply convinced that this practice has greatly facilitated the widespread occurrence of the so-called SLAPP suits (Strategic Lawsuit Against Public Participation), through which economically powerful entities, using their influence on local courts, exert pressure on the media not to report on their business. Against this background, I believe we would have considerably more objective judgments if courts of general local jurisdiction handled defamation cases,” said lawyer Ahmet Efendić.