29/1/2017 ON THE DRAFT LAW ON AMENDMENTS TO THE CRIMINAL CODE: NO STRONGER PROTECTION FOR JOURNALISTS & FREE SPEECH REGARDING JUDICIARY AT RISKKategorija / Category: saopštenja
The Ministry of Justice in the Draft Law on Amendments to the Criminal Code (CC) did not include any of several proposals for stronger legal protection of journalists and better framework for investigative journalism, advocated for by HRA and Media Trade Union. Instead, the Ministry proposed amendments that could endanger freedom of expression.
What has not been accepted
Proposals to prescribe new criminal offenses Attack on journalists in the performance of professional duties and Preventing journalists in the performance of professional duties and additions to the existing criminal offenses Aggravated murder and Grievous bodily harm were not adopted. Adopting the proposals would express social awareness that attacks on journalists are especially dangerous and unacceptable phenomenon in a democratic society, and that journalists deserve special protection for doing their jobs in the public interest.
The proposal to decriminalize criminal offenses Violation of the reputation of Montenegro, Violation of the reputation of nations, national and ethnic groups and Violation of the reputation of a foreign state or an international organization has not been adopted, which we have proposed as a logical complement to the decision to decriminalize criminal offense Insult and Defamation, as well as to decriminalize criminal offense Spreading information about private and family life, bearing in mind that this is a special form of insults and not the offense that protects the privacy.
Nor was accepted the proposal to facilitate journalist to perform investigative journalism by freeing him/her of criminal liability in every case when they act to prevent and detect a criminal offence by taking action sanctioned by following offenses: Infringement of privacy of mail and other means of communications, Unauthorized wiretapping and recording, Unauthorized photographing, Unauthorized publication and presentation of a somebody else’s written texts, portraits and recordings and Unauthorized collection and use of personal data. Currently valid condition for the existence of mentioned offenses alleged “discovery of the offense for which the law provides a prison sentence of 5 years or more severe punishment” is unjustifiably restrictive and contrary to international standards, because it does not allow disclosure e.g. police abuse and other abuse of officials for which are prescribed a lower sentence of imprisonment of at least 5 years.
More details on proposals and their justification are available here.
What is proposed
On the other hand, lawyers were recognized in the Draft Law as persons who should receive greater protection in the context of art. 396a, in addition to judges, prosecutors, notaries and public employees, and this we certainly support.
However, amendments of the criminal offence Obstruction of Justice (art. 396a) proposed in the Draft, endanger freedom of expression by wide formulations in breach of the European standards.
First, a fine as well as up to one year in prison is proposed for anyone who “publicly exposes to mockery the courts or state prosecution.”
The proposed provision we consider problematic for two reasons. First, the action “exposure to mockery” has not been defined in the Criminal Code, nor the Ministry of Justice proposed its definition, and according to the law of the European Court of Human Rights law must be precisely formulated [Sunday Times (No.1) v United Kingdom, no. 6538/74, para. 49]. “Exposure to mockery” could be interpreted to prevent also well substantiated criticism in public interest in respect of a court or prosecutor with a touch of humour, which is contrary to European standards. Particularly disturbing is prison punishment for the offence, having in mind that even for earlier decriminalised offences Insult and Defamation before decriminalisation there was no prison sentence, and that the Criminal Code already foresees the possibility for the court to substitute fine with imprisonment in case fines are not paid.
Second, the proposal is to also punish by imprisonment up to one year “anyone who before making a final court decision by public statement on the procedure in progress violates the presumption of innocence or has made a public statement with the intention to harm the independence of the court or to influence the State Prosecutor in the performance of its functions or otherwise seriously hampers the conduct of criminal proceedings.”
From the proposed, we believe that it is only appropriate to provide for a fine for violating the presumption of innocence.
As for making statements “in order to violate the independence of the court” and “influence on the State Prosecutor in the performance of functions” such wide set bans could lead to punishment for substantiated criticism in the public interest, which is contrary to freedom of expression.
By adoption of the said provisions it would be seduced general prohibition of commenting on investigations and court proceedings that are ongoing. The introduction of the same crime offense in Serbia has been widely criticized, had failed to produce a single case of criminal prosecution so was decriminalized.
HRA and Media Trade Union invite Ministry of Justice to reconsider the possibility for Amendments to the Criminal Code in order to provide stronger criminal protection of journalists, make a logical complement of the decision to decriminalize insult and defamation and facilitate dealing with investigative journalism, as well as to give up from mentioned amendments and complement which implementation is likely to endanger the freedom of expression.