May 9, 2012
Human Rights Watch urges the National Assembly to remove articles 37 and 38 from the criminal code in order to bring it into compliance with international standards on media freedom.

Building of the National Assembly
Mother Theresa Street
10000 Pristina
Kosovo


Dear Members of the Legislation Committee of the National Assembly,

I am writing to you regarding articles 37 and 38 of the draft criminal code. Human Rights Watch understands that the code was returned by President Atifete Jahjaga to the National Assembly on May 8 for reconsideration.

Although Human Rights Watch has been unable to review an English version of the draft criminal code, we understand that articles 37 and 38 substantially correspond to articles 28 and 29 of the existing 2003 criminal code, which themselves raise concerns in regard to the freedom of press since they criminalize defamation and seek to compel journalists to reveal their sources.

Human Rights Watch urges the National Assembly to remove articles 37 and 38 from the criminal code in order to bring it into compliance with international standards on media freedom.

Media freedom is an essential right in a democratic society. The ability to practice journalism free from interference and to protect sources of information are core principles in ensuring full media freedom. Incorporating articles 28 and 29 of the 2003 criminal code into the new criminal code would directly threaten those principles and thereby undermine media freedom in Kosovo.

Under article 28 of the 2003 criminal code, journalists could be subject to criminal prosecution for defamatory remarks in newspapers, periodicals, radio and TV. Human Rights Watch understands that the wording of article 37 in the draft criminal code retains the offense and includes provision for prosecution when publication is on the internet.

The present wording of article 37 therefore continues to put journalists at risk of criminal prosecution for conducting investigative reporting into sensitive issues, such as corruption, human rights abuses, general criticism of the government or high-ranking politicians. As such, article 37 of the draft criminal code is likely to have a chilling effect by encouraging self-censorship by journalists and editors.

Article 29 of the 2003 criminal code states that journalists may be held criminally liable if they refuse to reveal their sources where it is necessary to prevent “a criminal act punishable by a prison sentence of at least three years.”

Human Rights Watch understands that article 38 of the current draft criminal code corresponds to article 29 of the 2003 criminal code. This means that journalists will continue to risk criminal prosecution for reporting on a wide range of criminal activity. Forcing journalists to choose between protecting their sources and criminal punishment may discourage journalists from addressing sensitive issues, such as corruption or other abuse by authorities or high ranking public officials, and make whistle-blowers reluctant to come forward.

Freedom of expression and of the media is guaranteed in both international and regional human rights instruments such as Article 19 of the International Covenant on Civil and Political Rights and Article 10 of the European Convention on Human Rights, international standards which Kosovo has pledged to respect.

The European Court of Human Rights jurisprudence on Article 10 states that where there is a conflict between the protection of honor and reputation of politicians and the freedom of press, courts should refrain from applying criminal sentences, in particular imprisonment. Such sentences endanger the very core of the freedom of expression and function of censorship for the entire media and obstruct the press from acting as a public watchdog.

Given the incompatibility of articles 28 and 29 of the 2003 criminal code and of articles 37 and 38 of the draft criminal code with international standards, we urge the National Assembly to remove articles 37 and 38 to ensure that Kosovo’s criminal code is in line with international human rights law.

Sincerely,

Benjamin Ward
Deputy Director
Europe and Central Asia Division
Human Rights Watch