(29 August 1997) -- In a letter sent today to President Franjo Tudjman, Prime Minister Zlatko Matesa, and Public Prosecutor Marjan Hranjski, Human Rights Watch/Helsinki and the Lawyers Committee for Human Rights demanded that the government of the Republic of Croatia cease its criminal investigation of Ivan Zvonimir Cicak, president of the Croatian Helsinki Committee, in what appears to be yet another attempt to silence this vocal critic of official Croatian policy. Mr. Cicak is being investigated on suspicion of "disseminating false information," in violation of article 191 of the Croatian Criminal Code. The letter follows.
President Franjo Tudjman
Pantovcak 241
10000 Zagreb, Croatia
by facsimile: 385-1-456-5299
Prime Minister Zlatko Matesa
Trg Sv. Marca 2
10000 Zagreb, Croatia
by facsimile: 385-1-456-9316
Public Prosecutor Marjan Hranjski
Ulica Grada Vukovara 84/7
10000 Zagreb, Croatia
by facsimile: 385-1-615-9055
August 29, 1997
Dear President Tudjman, Prime Minister Matesa, and Prosecutor Hranjski:
We write to express our serious concern over the criminal investigation of Mr. Ivan Zvonimir Cicak, President of the Croatian Helsinki Committee for Human Rights, for alleged "dissemination of false information" in contravention of article 191 of the Croatian Criminal Code. We believe that the proceedings against Mr. Cicak represent not only the application of a repressive law, but an attempt by the Croatian government to silence a prominent human rights advocate and a vibrant voice of opposition in Croatia.
On August 11, 1997 Mr. Cicak granted an interview to the satirical weekly Feral Tribune in which he briefly discussed a 1991 meeting held in Karadjordjevo between Croatian President Franjo Tudjman and his then Serbian counterpart, Slobodan Miloševic. The meeting, which took place several months before the start of the war in former Yugoslavia, was widely interpreted by both opposition politicians and the media in Croatia and Serbia as having laid the groundwork for a division of Bosnia and Hercegovina between those two states. In the Feral Tribune interview Mr. Cicak reiterated this view. He also claimed that the Karadjordjevo discussions had been taped and that a Croatian general, whom he did not name, was given access to the tapes while on a visit abroad.
The Public Prosecutor of Croatia responded by announcing that the Zagreb municipal prosecutor's office had lodged a proposal for "the conduct of certain investigative actions" against Mr. Cicak with the Zagreb District Court because of "false claims" presented in the interview. The Prosecutor's announcement alleged that Mr. Cicak had implicated both President Tudjman and Defense Minister Gojko Sušak as participants in the Karadjordjevo meeting and therefore, this statement would imply, responsible for ethnic cleansing in Bosnia and Herzegovina. Mr. Cicak, in fact, did not mention Minister Sušak in that segment of the interview.
Mr. Cicak is being criminally investigated for an act that should not be penalized pursuant to international human rights norms guaranteeing freedom of opinion and expression. Article 191 of the Croatian Criminal Code provides:
Whoever presents, distributes or disseminates information or claims which he knows are false and are capable of causing the alarm of a larger number of citizens, with the intent of producing such alarm, shall either be fined or sentenced to up to six months' imprisonment.
This law presents conflicts with the right of free expression in several respects.(1)
Article 19 of the International Covenant on Civil and Political Rights, to which Croatia is a party, allows government restriction on free speech only where "provided by law" and "necessary" for the protection of certain limited interests, such as public order. To be "provided by law," a statute must be written with sufficient specificity as to give the public notice of what sort of speech may incur penalty. The Croatian law rests on an entirely subjective standard, prohibiting speech merely "capable" of causing alarm, a malleable rule that can easily be used after the fact to prosecute political statements. Moreover, the law fails to specify "alarm" in a way that links it to significant damage to public order. In this respect it harkens back to the charge of "hostile propaganda" under former article 133 of the Yugoslav Federal Criminal Code, frequently used by the communist government to imprison its critics, including President Tudjman himself.(2) The crime of "hostile propaganda" was deleted from the federal code in 1990, but similar crimes of "false information" were retained in the codes of the republics, and it is this crime which is the basis for the current charge against Mr. Cicak.
The government has brought to light no evidence demonstrating the falsehood of Mr. Cicak's statements; however, even if it had, the government must demonstrate some risk to public order before it may pose restrictions. In this case, the very section of the interview that resulted in the potential indictment of Mr. Cicak referred to an interview given several years ago by Mr. Cicak to the German newspaper Der Spiegel; certainly, the failure of this first interview to produce any threat to public order suggests that this information, especially since it is now merely reiteration, presents no such threat either. In fact, Mr. Cicak also makes reference in the body of the interview to the fact that these allegations are well known and, if not necessarily commonly held, had been publicized widely throughout Croatia prior to this interview. The likelihood is slim that a statement that was both previously made, and also generally well-known, will result in public alarm.
That speech may cast political officials or their actions into an unfavorable light is not in itself a threat to public order. Indeed, vigorous debate on matters of government is a hallmark of democracy. The European Court of Human Rights has held that "freedom of expression is an essential element for the formulation of political opinion."(3) The Court has afforded a particularly high degree of protection to speech of a political character, emphasizing that the appropriate response of the criticized government is to engage its opponent in further debate rather than to impose criminal sanctions.(4) Moreover, for a restriction to be "necessary," it must be proportional to the risk posed. In this case, where there is no evidence of any genuine risk to public order from Mr. Cicak's statements, criminal sanction is clearly unwarranted.
Mr. Cicak is well known both as a champion of human rights in Croatia and a critic of the Croatian government and its policies. He has been the subject of numerous attacks: first by the communist Yugoslav Government which jailed him, and later by Croatian government officials and the state-controlled press. In recognition of his continuing work, Mr.Cicak was most recently awarded the 1997 Bruno Kreisky award for achievement in the field of human rights. The circumstances of this criminal charge suggest that this is yet one more unjustified effort of the government to silence Mr. Cicak, rather than an effort to preserve public order in a democracy.
Given the facts and circumstances outlined above, the Lawyers Committee for Human Rights and Human Rights Watch/Helsinki strongly urge the Croatian government to discontinue the criminal investigation instituted against Mr. Cicak, as contrary to the right to freedom of opinion and expression guaranteed under international human rights law. For the same reasons, we believe that the Croatian Criminal Code should be amended at the earliest opportunity to exclude the crime of "disseminating false information," which, through this example, demonstrates its ability to be misused in such a way as to politically target activists like Mr. Cicak. Until such an amendment comes into effect, no investigations or charges should be brought under article 191. Finally, we urge the Croatian government to cease obstructing the activity of the Croatian Helsinki Committee and Mr. Cicak and to, instead, engage in a substantive dialogue on the human rights abuses in Croatia which the Committee so courageously seeks to document and prevent.
Sincerely yours,
Holly Cartner Stefanie Grant Executive Director Director of Program and Policy Human Rights Watch/Helsinki Lawyers Committee for Human Rights
cc:
Ambassador Miomir Zuzul
Secretary of State Madeleine Albright
Asst. Secretary John Shattuck
Ambassador Peter Galbraith
Dr. Zeljko Sabol, President of the Parliament of the Republic of Croatia
1. A series of international covenants and agreements codify the right of an individual to hold his or her own opinion without interference and express this opinion with very few exceptions. See, for example, the Universal Declaration of Human Rights (UDHR), article 19; the International Covenant on Civil and Political Rights (ICCPR), article 19; the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), article 10; and the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Section I, General Principles, and Section II, Limits to Restrictions on Freedom of Expression. Human Rights Watch/Helsinki and the Lawyers Committee for Human Rights believe that there is no room for Article 191 in a democratic legal system because its provisions run contrary to standards of freedom of opinion and expression guaranteed by these instruments.
2. Article 133 stated:
"Whoever, by means of an article, leaflet, drawing, speech or in some other way, advocates or incites the overthrow of the rule of the working class and the working people, the unconstitutional alteration of the socialist social system of self-management, the disruption of the brotherhood, unity and equality of the nations and nationalities, the overthrow of the bodies of social self-management and government or their executive agencies, resistance to the decisions of competent government and self-management bodies which are significant for the protection and defense of the country; or whoever maliciously and untruthfully portrays socio-political conditions in the country shall be punished by imprisonment for from one to ten years."
As could be expected from the dangerously vague language used to describe this criminalized speech, this charge was frequently and successfully applied to many dissidents expressing criticism of the government.
3. Castells v. Spain, Eur. Ct. H.R. (Ser. A, No. 236), (1992), para. 68.
4. Id., para. 68 and 72.