CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 16 janvier 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s5243C837 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5830ECD9 { width:0.2pt; display:inline-block } .s688B9698 { width:197.43pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     FOURTH SECTION DECISION Application no. 48657/16 Abedin SMAJIĆ against Bosnia and Herzegovina The European Court of Human Rights (Fourth Section), sitting on 16   January 2018 as a Committee composed of:   Carlo Ranzoni, President,   Faris Vehabović,   Péter Paczolay, judges, and Andrea Tamietti, Deputy Section Registrar, Having regard to the above application lodged on 29 July 2016, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Abedin Smajić, is a citizen of Bosnia and Herzegovina who was born in 1984 and lives in the Brčko District (“BD”). He was represented before the Court by Mr O. Mulahalilović, a lawyer practising in BD. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3 .     The applicant is a lawyer. On 12 March 2010 he was arrested on suspicion of inciting national, racial and religious hatred, discord or intolerance. 4 .     On 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. 5 .     On 30 January 2012 the BD Basic Court ( Osnovni sud Brčko Distrikta ) found the applicant guilty of inciting national, racial and religious hatred, discord or intolerance and sentenced him to one year’s imprisonment, suspended for a period of three years. In accordance with Article 160 § 4 of the 2003 BD Criminal Code the applicant’s personal computer and his laptop were seized (see paragraph 13 below). Furthermore, the applicant was ordered to pay 100 convertible marks (BAM – 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: “ ... I also think that Ivići is key for Bosniacs, because it is a natural elevation in the Brčko plain and [from there] the whole city [is visible] as if [lying] on the palm of a hand; to have Ivići 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 Ivići.) ... I will post photos soon; now I am busy working ... there will be this stinking Christmas soon and it is a public holiday in Brčko so I will [have time] to take photos ... if we organise ourselves they stand no chance of taking over Brčko. ... Ilićka settlement – which has around 3,500 to 5,000 Serbs [2] – is problematic ... Ilićka and Grčica should be struck at first, as these are two key Serb settlements. It is easy to attack Grčica because there are some Bosniacs there, whereas Ilićka 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 Gradačac and Srebrenik. Then, in my opinion, we should attack Grčica and Srpska Varoš ... the city centre should then be slowly cleansed because there are many buildings and there is a risk of heavy losses ... ... Serbs who came from different shitholes live there; there is [only a very small native] population ... Ilićka is a settlement [which consists mostly] of radical-thinking Serbs who would be the first to concoct [a fight] with Bosniacs from Brčko and which, in the event of any scenarios [involving secession] from [Republika Srpska] should be attacked and neutralised first ... “ 6 .     The 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 “constituent peoples” (persons who declare affiliation with Bosniacs, Croats [3] and Serbs) that live in BD. 7 .     Both 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 “closed forum” on the Internet could not be considered to constitute a “public place”. 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 “real world” – 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 Mulahalilović, the applicant’s 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 Mulahalilović 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   Mulahalilović, he had decided to no longer submit to questioning. 8 .     On 28   November 2012 the BD Appellate Court ( Apelacioni sud Brčko Distrikta ) upheld the judgment of the Basic Court of 30 January 2012. As regards the applicant’s right to legal assistance, the Appellate Court concluded from the record of the questioning of 12   March 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 Mulahalilović – at the time in question “the applicant’s future defence counsel” – 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. 9 .     As regards the interpretation of the relevant law, the Appellate Court concluded, on the basis of expert witnesses’ statements, that the Internet forum had been “closed” 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 “public place”. 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’s action actually to have had negative consequences, but only that they had been “objectively capable of producing such effects”. 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 “this stinking Christmas”, “get rid of the danger behind our backs”, “the city centre should then be slowly cleansed” and “Serbs who came from different shitholes live there”. The court held that the applicant’s 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. 10.     On 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). 11 .     On 20 April 2016 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) rejected the applicant’s 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’s actions and had addressed all the applicant’s 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’s 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 Mulahalilović. 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’s defence rights. 12 .     The Constitutional Court furthermore rejected as manifestly ill-founded the applicant’s complaint under Article 10. It reiterated that freedom of expression, although wide, could be subject to restrictions provided for by Article 10   §   2. 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.   35222/04, 20   February 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’s 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. B.     Relevant domestic law 13 .     Article 160 of the 2003 BD Criminal Code ( Krivični Zakon Brčko 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: “(1) Any person who incites or stirs up national, racial or religious hatred, discord or intolerance among the constituent peoples and others living in Brčko District [may] be punished by a custodial sentence of no less than one year and not exceeding five years. ... (4) Materials and items which transmit the [kind of] messages listed in paragraph   1   of this Article, as well as the tools for their production, multiplication or dissemination, will be seized”. 14 .     Article 78 of the 2003 BD Code of Criminal Procedure ( Zakon o krivičnom postupku Brčko 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: “(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: (a) the right not to present evidence or answer questions; (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; (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; ... (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 ... (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. ... (6) If any actions have been taken contrary to the provisions of this Article, the court’s decision may not be based on a suspect’s statement.” COMPLAINTS 15.     The 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   §§   1 and 3 (c) of the Convention. 16.     The 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. THE LAW A. Complaints under Article 6 of the Convention 17.     The applicant alleged a breach of his rights under Article 6 §§ 1 and 3 (c) of the Convention which, in so far as relevant, reads as follows:   “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3.     Everyone charged with a criminal offence has the following minimum rights: ... (c)     to 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; ... ” 1. Alleged denial of access to a lawyer 18.     The applicant submitted that on 12 March 2010 he had been questioned without the presence of a lawyer. Although Mr   Mulahalilović 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   Mulahalilović’s mobile phone record for March 2010 and a note he had made of the phone call in question. 19.     The Court recalls that Article 6 § 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 – whatever its justification – 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, § 55, 27 November 2008, and Dvorski v. Croatia [GC], no. 25703/11, § 80, ECHR 2015). 20.     Neither 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, §   86, 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, § 173, 22 May 2012; Sejdovic , cited above, § 87; and Jones v.   the United Kingdom (dec.), no. 30900/02, 9   September 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 “knowing and intelligent waiver” standard established in the Court’s case-law (see   Dvorski , cited above, §   101). 21.     Turning 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   paragraphs 4, 8 and 11   above). 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’s 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. 22.     As to the applicant’s claim that Mr Mulahalilović 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 Mulahalilović or any other lawyer to be present at the questioning of 12   March 2010. Furthermore, there is no indication in the case file as to whether at that time Mr   Mulahalilović was already the applicant’s lawyer. The applicant did not indicate that he, or a member of his family, had given a power of attorney to Mr Mulahalilović prior to his arrest on 12   March 2010 (contrast, mutatis mutandis , Dvorski , cited above § 90). In these circumstances, the Court considers that the applicant, who was a lawyer himself, unequivocally waived his right to legal assistance. 23.     Therefore, this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35   §§ 3 (a) and 4   of the Convention. 2. Alleged arbitrary interpretation of domestic law 24.     The 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. 25.     The 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 – for instance where, in exceptional cases, such errors may be said to constitute “unfairness” incompatible with Article 6 of the Convention (see   Bochan   v.   Ukraine (no.   2) [GC], no. 22251/08, § 61, ECHR 2015, and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11   July   2017). 26.     Article 6 § 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   6   § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan, cited above, §   61, and Moreira Ferreira , cited above, § 83). 27 .     In the present case the Court does not see any factor by which it can be established that the applicant’s right to a fair trial was infringed. The mere fact that the applicant disagreed with the courts’ 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’ application of domestic law was neither arbitrary nor manifestly unreasonable. 28. It follows that this complaint is also manifestly ill-founded and must therefore be rejected, in accordance with Article 35   §§ 3 (a) and 4 of the Convention. B. Complaint under Article 10 of the Convention 29.     The 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: “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 rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 30.     The 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. 31. The Court notes that the applicant’s conviction amounted to an “interference” with his right to freedom of expression. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10, and is “necessary in a democratic society” for achieving such an aim or aims. 32.     The interference in the present case was prescribed by law; namely, it was based on Article 160 § 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 § 2 – namely the protection of the reputation and rights of others. 33.     The 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’s self-fulfilment. Subject to Article   10 § 2, it applies not only to “information” or “ideas” 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 “democratic society”. 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 Perinçek v. Switzerland [GC], no. 27510/08, §   196 (i), ECHR 2015 (extracts)). 34.     The 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.   35222/04, 20   February 2007, and Belkacem v. Belgium (dec.), no.   34367/14, § 29, 27 June 2017). The Court’s 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 Cumpǎnǎ and Mazǎre v. Romania [GC], no.   33348/96, §   89, ECHR 2004-XI). 35.     The 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. (see Perinçek , cited above, § 196 (iii)). 36.     Turning 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’s secession. In the domestic courts’ 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   above). 37.     The 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 – as already stated above in relation to Article 6 (see paragraph 27 above) – had jurisdiction to quash the lower courts’ decisions and remit the case for retrial – endorsed this reasoning as relevant and sufficient (see   paragraph   12   above). 38.     In 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 Aslan v. Turkey , no. 34364/08, §   76, 20 October 2015). 39.     The Court notes that the subject of the applicant’s 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’s conviction. 40.     Finally, 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 Sürek v. Turkey (no.   1) [GC], no. 26682/95, § 64, ECHR 1999-IV). In the present case the Court notes that the maximum penalty for the criminal offence in question was five years’ imprisonment. The applicant was sentenced to one year’s imprisonment, suspended for a period of three years and his personal computer and a laptop were seized (see paragraph 5   above). In the circumstances of the present case, the Court does not find the penalties imposed to have been disproportionate. 41.     Therefore, having regard to the circumstances of the present case, the Court considers that the interference with the applicant’s right to freedom of expression does not disclose any appearance of violation of Article 10 of the Convention. 42.     Accordingly, this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35   §§ 3 (a) and 4 of the Convention. C. Other complaints 43.     The Court examined the applicant’s 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’s 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 §§ 3 (a) and 4 of the Convention.   For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 8 February 2018.   Andrea Tamietti   Carlo Ranzoni Deputy Registrar   President     [1] Bosniacs were known as Muslims until the 1992-95 war. The term “Bosniacs” ( Bošnjaci ) should not be confused with the term “Bosnians” ( Bosanci ) which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin. [2] Serbs are an ethnic group whose members may be natives of Serbia or of any other State of the former Yugoslavia. The term “Serb” is normally used to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with the term “Serbian” which normally refers to nationals of Serbia. [3] Croats are an ethnic group whose members may be natives of Croatia or of any other State of the former Yugoslavia. The term “Croat” is normally used to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with the term “Croatian” which normally refers to nationals of Croatia.