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Kosovo: Draft Criminal Code Undermines Media Freedom

Parliament Should Strike Criminal Defamation, Compulsion to Reveal Sources

(Berlin) – Kosovo’s National Assembly should remove provisions from the draft criminal code that criminalize defamation and compel journalists to reveal their sources, Human Rights Watch said yesterday in a letter to members of the National Assembly’s legislative committee.

President Atifete Jahjaga returned the draft criminal code to the National Assembly for reconsideration on May 8, 2012, after it was sent to her for her final approval. The president’s decision followed widespread criticism of the measures, articles 37 and 28 of the draft code, in Kosovo.

“These provisions unjustifiably interfere with journalists and undermine media freedom in Kosovo,” said Lydia Gall, Eastern Europe and Balkans researcher at Human Rights Watch.

“The National Assembly should remove these articles and bring Kosovo’s criminal code in line with human rights standards.”

The National Assembly adopted the code on April 20. In response, on April 23, hundreds of Kosovo journalists protested in silence before the National Assembly, urging the president not to approve the code. On May 3, Kosovo media outlets conducted a one-day boycott, refusing to cover news of the government and parliament. Newspapers and news websites published the boycott logo on their front pages and radio and television – including state-run media – joined the news blackout.

The provisions that should be removed are similar to problematic articles 28 and 29 of the existing criminal code from 2003, Human Rights Watch said.

Under article 37 of the new code, journalists risk criminal prosecution for publishing defamatory remarks in newspapers, periodicals, radio, and TV, and the Internet – which was not covered under the 2003 code.

Under article 38 of the new code, journalists can be prosecuted for failing to reveal their sources in cases involving any crime subject to a sentence of more than three years. This may discourage journalists from investigative reporting on sensitive issues such as corruption or human rights by the government or high-ranking politicians, and make whistle-blowers reluctant to come forward, Human Rights Watch said.

Freedom of expression and of the media are guaranteed by article 19 of the International Covenant on Civil and Political Rights and article 10 of the European Convention on Human Rights, international standards that Kosovo has pledged to respect.

The European Court of Human Rights has made clear in its case-law that national courts should refrain from applying criminal sentences, particularly imprisonment, for defamation. Such sentences endanger the very core of the freedom of expression, function as censorship for the entire media and obstruct the press from acting as a public watchdog, the court has said.

“The National Assembly should recognize that these provisions jeopardize investigative journalism and threaten the public’s right to know,” Gall said. “They run counter to European trends to decriminalize defamation and protect whistle-blowers.” 

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