In accordance with the Conclusions of the National Assembly of the Republic of Srpska Number: 02/1-021 277/23 from March 23, 2023 and the published public invitation to hold a public hearing in relation to the Draft Law on Amendments to the Criminal Code of the Republic of Srpska Number 08.070/012 -651/23 from April 19, 2023, we submitted to the Ministry of Justice of the Republic of Srpska amendments to the Draft Law on Amendments to the Criminal Code of the Republic of Srpska.
Below you can see what those amendments are.
“CHAPTER XVIIa
CRIMINAL OFFENSES AGAINST HONOR AND REPUTATION
Insult
Article 208а
(1) Anyone who insults another will be punished by a fine of 5,000 BAM up to 20,000 BAM.
(2) If the act referred to in paragraph 1 of this article was committed through the press, radio, television or other means of public information or at a public meeting or in another way, due to which the insult became available to a large number of persons, it shall be punished by a fine of 10,000 BAM up to 50,000 BAM.
(3) If the perpetrator was provoked by the unworthy behavior of the offended party or if the injured party accepted his apology before the court for the committed act, the court may release him from punishment.
(4) If the offended party returned the insult, the court can release both or only one of the perpetrators from punishment.”
Amendment 1
The proposed article is deleted
Explanation:
If we look at the meaning of the word “insult” in the Dictionary of the Serbian Language of Matica Srpska on page 1366, we will see that it is “words, actions, etc. which cause mental pain, unpleasant feeling, insult dignity to someone”. Therefore, the very concept of insult is defined in such a way that it can be done in various ways, as long as its consequence is one of the above, and this again largely depends on the personality of the “injured”, because not all words or actions will cause unpleasant feeling or mental pain of the same intensity with everyone.
One of the basic principles of criminal law is “nulla poena sine lege certa”, which means that citizens cannot be punished if the criminal offense is not prescribed by law, but so that all terms are clearly defined and understandable. The criminalization of insult in the misdemeanor aspect was established by the adoption of the Law on Public Order and Peace, and it is prescribed in Article 8, which states: “Whoever causes a feeling of physical danger or distress by grossly insulting another person on a political, religious or national basis or by other reckless behavior to citizens will be punished by a fine of 200 BAM up to 800 BAM.” The described misdemeanor, in contrast to the nature of the criminal offense of insult in the Draft, prescribes the basis of insult and behavior, then prescribes the consequence that is reflected in the feeling of physical danger or distress of citizens.
In the Draft that prescribes the criminal offense of insult, we do not find the following consequence or any description of the action that could constitute an insult, in other words, the legislator punishes for insult, but does not define it anywhere. If these amendments were to be adopted, citizens would not know for sure what is prohibited and how to ensure that they do not commit this criminal offense in their daily communication. And consequently, even the persons who will have to apply these provisions will not have clearly set criteria for determining the concept of insult. Therein lies the second, perhaps more dangerous consequence of an imprecise and unclear provision, which is that the meaning and scope of the provision itself will be defined through practice. This is a glaring example of an imprecise and unclear norm, which should not be included in our Criminal Code, because it would destroy any semblance of legal security we have.
Also, as the term “insult” is very subjective and open to wide and different interpretations, there is a risk that it will be interpreted in an arbitrary way. Due to the unclear and overly broad nature of this type of regulation, it may happen that it prevents, for example, political caricature or satire of public figures.
“Defamation
Article 208b
(1) Whoever states or conveys something untrue about another that may harm his/her honor or reputation, knowing that what he/she states or conveys is untrue, will be punished by a fine of 8,000 BAM up to 30,000 BAM.
(2) If the act referred to in paragraph 1 of this article was committed through the press, radio, television or through social networks, at a public meeting or in another way, due to which it became available to a large number of persons, it will be punished by a fine of 15,000 BAM up to 80,000 BAM.
(3) If what is stated or conveyed has led or could lead to serious consequences for the injured party, the perpetrator will be punished by a fine of 20,000 BAM up to 100,000 BAM.”
Amendment 2
The proposed article is deleted
Explanation:
The criminal offense of defamation is presribed in such a way that, unlike defamation in civil law defined by the Law on Protection against Defamation of the Republic of Srpska, it is not necessary for the injured party that harm occurs at all. On the contrary, the legislator prescribed that defamation is the expression that “can harm someone’s honor and reputation” without the obligation to cause such harm. Again, similar to the previous act, we come to a situation where in criminal offenses we lower the scale below the standards we have established in misdemeanors or in civil law protection. This indicates that the primary goal of this act is not the protection of the injured (because they do not even have to be injured), but actually only punishing those who could state or convey some information.
When it comes to the qualified form of this act, which is reflected in the stating and conveying via television, radio, press, social networks, it is clear that the focus is on public criticism and demystifying the goal of these amendments, which is to “intimidate” the public. This is not just about defamation being criminalized, but also how it was done. And it was done unclearly, imprecisely, without clear protection of the injured and with an obvious focus on expanding the circle of perpetrators.
“Exposing personal and family circumstances
Article 208v
(1) Whoever states or conveys anything from the personal or family life of a person that may harm his honor or reputation, will be punished by a fine of 10,000 BAM up to 40,000 BAM.
(2) If the act referred to in paragraph 1 of this article was committed through the press, radio, television or through social networks or at a public meeting or in another way, due to which it became available to a larger number of persons, the perpetrator will be punished by a fine of 20,000 BAM up to 100,000 BAM.
(3) If what is stated or conveyed has led or could lead to serious consequences for the injured party, the perpetrator will be punished by a fine of 25,000 BAM up to 120,000 BAM.
(4) The truth or falsity of what is stated or conveyed from the personal or family life of a person cannot be proven, except in the cases referred to in Article 208d of this Code.”
Amendment 3
The proposed article is deleted
Explanation:
This criminal offense is committed by the person “who states or conveys anything from the personal or family life of a person that may harm his honor or reputation”. Again, it is clear that this provision is completely imprecise and unclear, and in addition, it does not even establish the need for actual harm to the injured party. It is only important to state something that, according to the assessment of the person applying this provision, has the quality to harm the reputation and honor of a person, without the need for such harm to occur. What is even more interesting is that it is not defined at all what “everything from personal or family life” is and what it all refers to. Such a provision should not be part of the legal system of Republika Srpska. This is especially so if we have in mind paragraph 4 of the proposed article, which expressly states “The truth or falsity of what is stated or conveyed from the personal or family life of a person cannot be proven”. This could very easily be interpreted as being irrelevant as to whether it is stated correctly.
Here, too, the situation with the qualified form is the same, with one novelty. In addition to the previously mentioned way of stating and conveying as qualifying circumstances, the legislator also introduced the possibility of “severe consequences for the injured party”. Of course, this is not defined either. It is not even necessary that the consequences occurred. And finally, the question arises, who and how defines the severe consequences that could occur and how would it be proven in court proceedings?
“Public exposure to ridicule due to affiliation to a particular race, religion or nationality
Article 208g
Whoever publicly exposes a person or group to ridicule and contempt due to affiliation to a particular race, skin color, religion, nationality or due to ethnic origin, sexual orientation or gender identity, will be punished by a fine of 20,000 BAM up to 100,000 BAM.”
Amendment 4
The proposed article is deleted
Explanation:
The Criminal Code already prescribes a similar criminal offense in Article 359 “Public Incitement and Encouragement of Violence and Hatred”: “(1) Whoever through the press, radio, television, computer system or social network, at a public meeting or public place or otherwise publicly invites, incites or encourages or makes available to the public leaflets, images or some other materials that call for violence or hatred directed towards a specific person or groups because of their national, racial, religious or ethnic affiliation, skin color, gender, sexual orientation, disability, gender identity, origin or any other characteristics, shall be punished by a fine or a prison sentence of up to three years.”
In this case, there is practically a duplication of similar provisions, and we see no need to add new articles of the law, when the existing articles can possibly be refined, if the need arises through practice.
“Exclusion of illegality in criminal offenses against honor and reputation
Article 208d
There is no criminal offense under Art. 208a to 208v of this Code, if it is an offensive expression or statement of something untrue in a scientific, professional, literary or artistic work, in the performance of a duty prescribed by law, a journalistic profession, political or other public or social activity or the defense of a right, if from the manner of expression or other circumstances, it follows that it was not done with the intention of disparagement, or if the person proves the truth of his/her claim, or that he/she had a well-founded reason to believe in the truth of what he/she stated or conveyed.”
Amendment 5
The proposed article is deleted
“Prosecution for criminal offenses against honor and reputation
Article 208đ
(1) Prosecution for offenses referred to in Art. 208a to 208v of this Code is undertaken by proposal.
(2) If the offenses referred to in Art. 208a to 208v of this Code, committed against a deceased person, prosecution is undertaken at the proposal of a spouse or a person who lived with the deceased in a permanent extramarital union, relatives in the direct line, adopter, adoptee, brother or sister of the deceased.”
Amendment 6
The proposed article is deleted
“Public announcement of the verdict for criminal offenses against honor and reputation
Article 208е
(1) The verdict declaring the perpetrator guilty of a criminal offense against honor and reputation committed through the press, radio, television, computer system or network or other means of public information or communication shall be announced in whole or in part at the expense of the perpetrator.
(2) In the vedict, the court will determine the manner of its announcement, whereby, whenever possible, it will determine that it be in the same means of public information or communication in which the criminal offense was committed.”
Amendment 7
The proposed article is deleted
Explanation:
In accordance with the requests for deletion of provisions from articles 208a, 208b, 208v, 208g provisions 208d, 208đ and 208e of the Draft become unnecessary and therefore there is a need to delete them.
GENERAL COMMENTS ON THE PROPOSED DRAFT AMENDMENTS TO THE CRIMINAL CODE OF THE REPUBLIC OF SRPSKA
THE QUESTION OF COMPLIANCE WITH THE CONSTITUTION AND THE EUROPEAN CONVENTION
Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention; Convention) is specified in the jurisprudence of the European Court of Human Rights in Strasbourg (European Court). From that jurisprudence arose certain binding rules, which must implement all countries that have ratified the convention, such as ours.
The European Convention is not only directly valid, but it is also the strongest source of law, and accordingly all other regulations must be in accordance with it, as well as the relevant amendment to the Criminal Code. The proposed Draft Law is contrary to the adopted legal standards of the European Court, not only in the part that refers to criminal prosecution and the severity of the punishment, but also to the standard in which politicians and public figures are obliged to endure a greater degree of criticism, even if that criticism is shocking or inappropriate forms, but if it is of public interest even such form of expression has the protection of Article 10 of the European Convention. This comes from the nature of their activity; they are facing the public with their actions; they, thanks to the media, present themselves to the public as best they can; and hence, by the nature of that activity, they must be prepared to endure more than others.
This Draft annuls the established legal standards of the European Court, which implies that the state will lose proceedings before the Constitutional Court of Bosnia and Herzegovina and the European Court and will eventually have to harmonize its legislation with the European Convention.
THE QUESTION OF THE LEGITIMACY OF THE CRIMINALIZATION OF DEFAMATION
The basic idea behind the adoption of the existing defamation laws, in which defamation was decriminalized, was to contribute to greater freedom of media expression and the general democratization of society. This attitude also have various international organizations of which Bosnia and Herzegovina is a member, and Republika Srpska as part of it, such as the Council of Europe, the Organization for Security and Co-operation in Europe (OSCE) and the United Nations (UN).
The Parliamentary Assembly of the Council of Europe, i.e. the Council of Europe, in its famous Resolution “Toward the Decriminalization of Defamation” states that it is necessary to ensure that civil law provides effective protection of the dignity of persons affected by defamation.
The position of the OSCE Representative on Freedom of the Media is that journalists should not face criminal prosecution for their work, although this happens in many countries, very often for writing critical stories about public officials or institutions. In this regard, the Representative advocates the complete decriminalization of defamation and consideration of such cases in dispute resolution bodies or civil courts.
The United Nations Human Rights Committee has taken the view that states should consider decriminalization of defamation.
The UN Special Rapporteur for Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the Special Rapporteur for Freedom of Expression of the Organization of American States emphasized in a joint declaration that defamation has no place in criminal laws and that it is not a justified restriction of freedom of expression, that is, that defamation should be eliminated from all criminal laws and, if necessary, replaced by appropriate civil defamation laws. These bodies, together with the Special Rapporteur on Freedom of Expression and Access to Information of the African Commission on Human and Peoples’ Rights, emphasized that defamation under criminal laws is one of the ten greatest threats to freedom of expression.
UN General Assembly Resolution 76/173 on the safety of journalists and the issue of impunity, which was adopted in 2021 and supported by Bosnia and Herzegovina, calls on governments to ensure that defamation laws are not misused to censor journalists and interfere with their work, and “to, if necessary, revise and abolish such laws, in accordance with the obligations of States under international human rights law”.
In the report to the Human Rights Council by the Special Rapporteur for the promotion and protection of the right to freedom of opinion and expression on “Disinformation and Freedom of Opinion and Expression”, it was confirmed that “criminal law should be used only in very exceptional and worst circumstances of incitement to violence, hatred or discrimination. Criminal defamation laws are a legacy of the colonial past and have no place in modern democratic societies. They should be abolished”. Similarly, in the report to the Human Rights Council on”Strengthening Media Freedom and the Safety of Journalists in the Digital Age”, it was confirmed that “States should abolish criminal defamation and subversive defamation laws, as well as laws that criminalize criticism of state institutions and officials.The criminalization of speech (except in the worst cases of incitement to violence and hatred) is disproportionate, stifles journalism and harms democratic discourse and public participation”.
In addition to the above, the Special Rapporteur for the promotion and protection of the right to freedom of opinion and expression and the Special Rapporteur for the right to freedom of peaceful assembly and association directly asked our authorities on March 10 of this year to withdraw the proposed amendments to the Criminal Code of the Republic of Srpska and to give up from the criminalization of expression through the criminal law system.
This brief explanation of international standards indicates that the international legal framework in the field of human rights does not give the right to the National Assembly to criminalize defamation and insult through criminal law.
The laws that have been passed in our country were passed by the adoption of recent European standards in this area, expressed primarily in Article 10 of the European Convention, and the jurisprudence of the European Court of Human Rights in Strasbourg.
The position of the European Court of Human Rights is that freedom of expression should not be restricted too much. However, certain restrictions are allowed based on the provisions of the European Convention. So, although Article 10 of the European Convention does not explicitly exclude criminal prosecution for defamation, the European Court’s position in its decisions is clear that among the various interferences with freedom of expression after something has been said, the most dangerous criminal conviction and punishment is freedom of expression itself. Even in cases where criminal penalties are relatively small fines, the European Court is always against them, because they can constitute implicit censorship. Therefore, the regulation of responsability for defamation in the field of civil law in 2002 was considered a big step forward in achieving the highest international standards in the domain of freedom of expression.
WHY WOULD THE RE-CRIMINALIZATION OF DEFAMATION BE CONSIDERED JUSTIFIED? CRIMINAL SANCTIONS ARE A “LAST” RESOURCE
It is clear that the state must achieve a balance between two protected rights – the right to freedom of expression on the one hand and the right to reputation on the other. But the state already does this by prosecuting defamation in civil proceedings. The citizens responsible for the defamation paid and are still paying compensation of several thousand convertible marks, with the obligation to publish a denial and an apology.
We cannot say that the injured citizens whose reputations were violated by slanderous expressions did not receive fair satisfaction. On the contrary, every time a citizen abused the freedom of expression and thus caused harm to someone’s reputation, he/she answered before the court. Having in mind numerous lawsuits in the field of protection against defamation, higher and lower money compensation, quite objectively and logically the question arises why does the state consider the current state of protection of the right to reputation to be ineffective and insufficient?
The Ministry of Justice, explaining the reasons for passing the law, only emphasized that certain countries prescribe criminal offenses against honor and reputation, and that the presentation of untruths and personal and family circumstances of certain categories exceeded any norm of socially acceptable behavior and in every way devalued human dignity, physical and spiritual integrity, human privacy, as well as personal and family life. Therefore, no real reasons were given at all, except for general ones, for which the criminalization of defamation and insult should be approached. An analysis of the current application of the Law on Protection against Defamation and the Law on Public Order and Peace has not been done, nor has it been indicated why civil and misdemeanor protection are ineffective, and no detailed analysis of the situation in society with regard to possible criminal offenses has been done, so it is necessary to transfer to criminal law sphere.
Observing this, the criminalization of defamation and insult through the provisions of the Criminal Code remains absolutely unclear.
When freedom of expression is restricted, its restrictions must be the “last” line of defense against certain conduct and must be narrowly construed in such a way as to restrict only that action which is absolutely necessary to be restricted. Therefore, restricting freedom of expression, in this case through the Criminal Code, must come as an ultima ratio (last resort), and that when there are no milder solutions. However, there are milder solutions, within the framework of civil law. Why then is there a need to prescribe more difficult solutions that can excessively restrict freedom of expression?
Also, the restriction should be “reasonable”. “Reasonableness” in restricting rights implies that the restriction imposed is not arbitrary or excessive in nature beyond what is required in the public interest. Expression may be restricted only to the extent necessary and such restriction shall not be arbitrary or excessive. If the restriction were too broad, it also has the effect of deterring and even intimidating citizens from freely expressing their thoughts.
Bringing defamation and insult back into the framework of criminal law regulation would not be a reasonable act. Since defamation is already defined in civil law, the legitimate question arises as to why it should also be defined in criminal law? As the insult is already defined in the misdemeanor law, the justified question arises, why should it be defined in the criminal law as well? In reality, money compensation and publication of a verdict that can be obtained in a civil suit or a fine in a misdemeanor proceeding should be sufficient deterrents to the commission of defamation and insult.
CRIMINAL SANCTIONS EXCESSIVELY RESTRICT FREEDOM OF EXPRESSION
In accordance with the practice of human rights and ensuring as much freedom as possible for citizens, it is not good to over-regulate and restrict freedom of expression, because in the case of e.g. excessive punishments for certain expressions, it can very easily happen that these expressions completely disappear due to fear. Freedom of expression should be as free as possible, and its restrictions should only occur as a last resort. The large penalties prescribed in the Draft Law, as well as the very possibility of a criminal conviction, will certainly have a deterrent effect on the free expression of individuals.
Various European and international human rights bodies have criticized and continue to criticize the imposition of criminal sanctions in defamation cases. This criticism is particularly rooted in fears that criminal sanctions, compared to civil proceedings, have a greater potential to generate a certain deterrent effect (even an intimidating effect) on freedom of expression.
Punishing journalists, activists, prominent individuals and all other citizens through defamation, which is defined as a criminal offense, is a very big interference to freedom of expression and entails a situation where, despite the fact that their work is in the service of the public interest, they constantly have to reassess their expression and to fear criminal conviction. Consequently, the whole society also suffers the consequences when, for example, journalists’ mouth are shut by this kind of pressure, because citizens cannot (easily/easier) get access to important information provided by journalists.
Also, the criminal prosecution of an individual leaves a mark on the prosecuted person, even if he/she is not convicted. Defamation, which is prescribed through criminal laws, is particularly susceptible to abuses to silence opponents, critics and dissenters. Many studies by relevant international institutions, such as the OSCE and the Council of Europe, as well as the monitoring of media freedom groups indicate that criminal proceedings are still being conducted in some countries against dissidents as revenge for unwanted investigations or comments.
It is often cited as an argument for the criminal prosecution of defamation that criminal convictions are sometimes not so severe, and that fines are a mild form of punishment. However, the initiation of criminal proceedings for the criminal offense of defamation brings with it a special problem of the application of criminal law in such cases, even in cases of milder punishment. The European Court has also commented on this problem. So, for example, in the case of Dabrovski v. Poland, the European Court stated that, although the sentence imposed on Olgierd Dabrovski was relatively mild (about 330 euros), and although the proceedings against him were conditionally suspended, the domestic courts still determined that Mr. Dabrovski committed the criminal offense of defamation. As a result, he had a criminal record. In our cases, this could, through the consequences of the conviction, limit the right to employment of those who have been criminally convicted of defamation. In addition, the very fact that someone has been convicted of a criminal offense and that his/her name is on the criminal record has a stigmatizing effect on that person.
Moreover, although the sentence in this case did not prevent Olgierd Dabrovski from expressing himself, his conviction constituted a form of censorship that would discourage him from making such criticism again in the future. Such a belief is likely to deter citizens from contributing to public debate on issues affecting community life. By the same principle, such a belief can hinder everyone else in performing their tasks of providing information and safeguarding the public interest. In this Draft, even higher fines than the one discussed by the European Court are prescribed, and according to the Draft they go up to several tens of thousands of BAM, and therefore the pressure on freedom of expression is even greater.
A NECESSITY IN OUR “DEMOCRATIC SOCIETY”
A big question is whether the restriction of freedom of expression through the criminal law definition of defamation in the Republic of Srpska is necessary in a society that wants to be called “democratic”.
Namely, any restriction of freedom of expression should properly establish a balance between conflicting individual and general interests. In this sense, the protection of freedom of expression also implies making a distinction between expression that is shocking, but not unjustifiably derogatory or offensive, and expression that is aimed at violating the rights and freedoms of others.
For example, if someone calls for violence and hatred through his/her speech, he/she should be criminally sanctioned, because his/her expression can produce enormous negative consequences. In the Republic of Srpska, he/she can be prosecuted through the prescribed criminal offense of public incitement and encouragement to violence and hatred. However, if a journalist publishes a certain text in which there is no call to hatred or violence, and within which certain illegal actions of a person are revealed, there is no purpose of criminal punishment of such expression. Furthermore, if the text is true, an affair has been discovered and the prosecution should be involved, but only regarding the actions of that person. If false claims are made in the text, that person has the right to receive justice through civil proceedings. If the journalist wins the lawsuit, he/she will have to e.g. compensate for the harm and publicly announce the verdict, that is, that he/she defamed him/her. In a democratic society, this is a perfectly acceptable sanction for such expression.
A big problem is that the proposed changes do not recognize the concept of “public interest”, which means that the perpetrator will be convicted even though, for example, presented information of public interest. Therefore, changes to the Criminal Code can easily distract people from talking about problems in society, as well as from criticizing the illegality and bad actions of the authorities.
DISPROPORTIONALITY OF MEASURES
Restrictive measures imposed by law must comply with the principle of proportionality and should be appropriate to achieve their protective function, as well as proportionate to the interest being protected.
This means that restrictions on freedom of expression cannot be set arbitrarily and without applying certain methods, measuring proportionality and respect for both international legal regulations and the constitutional legal system of BiH, but also taking into account the opinions of international bodies that deal with the protection of human rights, from bodies of the UN to the European Court of Human Rights.
In Kanelopoulou v. Greece, a case involving alleged defamation directed at a doctor by a patient whose operation had become complicated, the European Court emphasized that civil law remedies would be quite sufficient to protect the doctor’s reputation if it had indeed been established that defamation. The European Court is also of the opinion that “the dominant position occupied by those in power makes it necessary for them to show restraint in the matter of resorting to criminal proceedings, especially when other means are available to respond to the alleged criticism of opponents”. Having this in mind, there is no need to return defamation to the auspices of criminal law, as there are already more proportional and better measures within the civil procedure.
When a certain provision is prescribed, together with the arrangements provided for its implementation, it must be ensured that the prescription of such a provision is the least restrictive, as well as that it imposes burdens that are not disproportionate with regard to the achievement of the goals that are sought to be achieved, which in this case are protecting the honor and reputation of citizens. The principles that rule in a democratic society also require that interference with freedom of expression be carried out in the case of an “urgent social need” that requires that specific restriction.
In the case of Republic of Srpska, there is no proportionality in prescribing the criminal offense of defamation and the criminal offense of insult. Above all, a sufficient “punishment” for the slanderer is the immediate payment of compensation to the one he/she slandered and e.g. publication of the verdict in the media, or punishment for a misdemeanor in the case of an insult, which achieves the purpose of restricting freedom of expression, i.e. a fair weighing of the right to freedom of expression and the right to protect the reputation and honor of an individual. If, on top of that, the person who used the expression had to go through criminal proceedings because of what he/she said, that would by no means satisfy proportionality in punishment and the requirement that criminal punishment is always a “last resort”.
Also, criminal punishment would have the already mentioned deterrent effect on those who want to express themselves freely. A deterrent effect in this sense can arise not only from a possible sanction, but also from the very fear of sanctions, even if an acquittal verdict were to be reached in the end.
It is also clear that punishments for defamation and insult under the Criminal Code are not the least restrictive solutions. Currently, those who commit defamation, if they lose the case in court, are obliged to pay money compensation to the other party, and do not have the stigma of a criminal offense behind them, while those who commit an insult pay a fine according to the law, and in the case of criminal law regulation and punishment for defamation and insult, a fine with the burden of the criminal offense that the individual would carry behind him would come into consideration, from which it follows that criminal punishment is not the least restrictive measure.
Laws should not impose burdens that are disproportionate to the offense committed. Criminal sanctioning would be a burden that is disproportionate to the offense committed. This could lead to a situation where the person who uses his freedom of expression, and the prosecutor prosecutes him/her for defamation or insult because of it, could be socially viewed as just as dangerous as the person who directly spreads hatred and calls for violence. This represents a complete devaluation of the principle of fairness and at the same time indicates the disproportionality of the punishment in terms of the seriousness of the crime committed.
When it comes to “urgent social need” we cannot see it in this case either. Civil proceedings related to defamation have been going on for two decades and a certain practice in this direction has started to be built. In this sense, it is not clear why there is an urgent social need to return defamation to the aegis of criminal sanctions, when civil proceedings are already functioning and providing certain results.
INEQUALITY OF APPLICATION AND DIFFICULTY OF REGULATION
Since defamation is not a criminal offense in the Federation of BiH or in the Brčko District of BiH, a situation would arise in which there would be unequal rights and obligations within one state. Thus, in Republic of Srpska one could be criminally liable for certain expressions, while in other parts of Bosnia and Herzegovina this would not be the case. This puts citizens in Republic of Srpska in an unequal position and narrows their freedom of expression compared to citizens in the Federation of BiH and Brčko District.
Defamation is very difficult to clearly and precisely regulate within the Criminal Code, in a way that does not leave too much room for additional interpretations and misuse of this term. On the other hand, a certain practice in this regard has already been developed within civil legal proceedings, and in addition, in the Law on Protection against Defamation, the basic matters related to defamation are clearly defined, although not ideally, but certainly to a much greater extent than could be done within the Criminal Code. The situation is very similar with insult.
EDUCATION OF JUDGES AND PROSECUTORS
The state has spent almost a decade of time and huge resources on the education of judges who are assigned to civil departments and who have tried defamation cases so far. Even today, we remember that in the first years after the entry into force of the current law, claims amounting to several tens and hundreds of thousands of convertible marks were accepted! Such practice has shut down numerous media outlets.
Now we are back at the beginning, with the fact that in the criminal proceedings the accused is not only subject to a fine of several tens of BAM, but also compensation for harm and a fine, so we will again reach a hundred thousand convertible marks, which will lead not only to the shutdown of the media, but also to the impossibility to pay a high fine, so the accused will inevitably be sentenced to prison, which can reach its maximum of (two) 2 years in the case of conversion from fine to prison.
We believe that such high fines and the criminal prosecution itself absolutely do not represent a balance between two protected goods, on the contrary, they place primacy on honor and reputation with the tendency of total deprivation of the right to freedom of expression. This kind of legislation is in direct contradiction with the already established practice of the European Court in Strasbourg, and this would be shown by the first case of review of verdicts of national courts before the European Court.
LAW ON MEDIA
For many years now, the media community has been appealing for the urgent need to pass a law that would regulate the work of the media, namely: the transparency of data about media and the register, imprint and identification, protection of media pluralism, the position of editors, journalists and representatives of foreign media, media distribution, temporary storage and insight into the media record, special rights and obligations in public information, information about court proceedings, personal information, means and procedures of legal protection, as well as penal provisions.
This law would protect registered media that have been doing their work ethically and transparently, but it would also prevent the further broadcasting of unregistered media that in practice mostly use slanderous propaganda and hate speech.
Adoption of laws on media and public information and regulation of the media space is a mandatory condition for the state to be able to go one step further and propose criminal prosecution. Skipping the regulation of the media space to penal policy represents a classic demonstration of force by the state apparatus, which is completely uninterested in regulating a certain social area in an efficient manner.
HATE SPEECH
Media are also blamed for the hate speech that we witness every day, although it is undeniable that the actors of hate speech are representatives of other structures. Since hate speech was used as one of the reasons for the criminalization of defamation, it is important to point out that hate speech as a verbal offense is already included in the Criminal Code of the Republic of Srpska in Article 359 under the title “Public Incitement and Enouragement of Violence and Hatred”.
How interested and successful the Prosecutor’s Office is in the fight against hate speech is shown by the number of processed cases, which is incomparably smaller compared to civil defamation lawsuits, so by analyzing the quality of the work of the Prosecutor’s Office on cases of hate speech as a verbal offense, we could in fact evaluate the quality of work on other verbal offenses as well, which, from the point of view of the injured party, does not provide adequate legal protection.
Moreover, jurisprudence shows that injured parties receive much more effective legal protection in civil proceedings because they have direct access to the court, compared to criminal proceedings in which the prosecutor makes the decision to initiate an investigation, file an indictment, and decide the fate of the property-legal claim itself. We hereby prove that from the point of view of the injured party, citizens will not receive better legal protection by criminalizing defamation.
In addition, prosecutors’ offices and courts are currently overloaded with a large number of cases. Criminal reports filed by citizens are often not reviewed and remain only in the drawers of individual prosecutor’s offices. By introducing defamation into the criminal law regulation, the number of cases would increase even more. What the extent of the impact would be on the (in)efficiency and (in)effectiveness of case processing is an open question, but it is clear that there would be an additional burden on the prosecutors’ offices and the courts, and that for a crime that is already effectively dealt with within civil law mechanisms.
FINES ARE UNCHARACTERISTIC
Article 49 of the Criminal Code prescribes fines in paragraph 1: “the fine is imposed in a certain amount, and if it is possible to determine the income and expenses of the perpetrator of the criminal offense, it will be imposed in daily amounts.” We can already see from this that the legislator did not at all leave the possibility to adequately apply this provision, prescribing fixed amounts of fines for criminal offense.
Paragraph 4 of this article stipulates: “The number of daily amounts of the fine is determined by the court by applying the general rules on sentencing. The amount of the daily amount is determined by the court by taking into account the amount of the offender’s daily income according to the amount of his/her three-month net salary and his/her other income, as well as necessary expenses. When determining the amount of the fine, the court takes into account information that is not older than six months at the time of the sentencing.” This clearly showed the legislator’s intention to try to adjust fines to the certain individual and financial situation of the perpetrator. The goal of this is that his/her existence would not be threatened due to the fine.
On the contrary, with this Draft the legislator aims to threaten the existence of persons who are in the circle of potential perpetrators with draconian fixed amounts of fines. The effect achieved by this is multiple, but self-censorship as the materialization of fear with threatened punishments will certainly be the most obvious effect. And it is obvious that this is the goal, clear, explicit and undisguised.
Due to all of the above, we suggest that the proponent of the Draft, the Ministry of Justice of the Republic of Srpska, adopt the proposed Amendments and in its entirety withdraw the Draft Criminal Code of the Republic of Srpska in the part related to CHAPTER XVIIa CRIMINAL OFFENSES AGAINST HONOR AND REPUTATION.
