The UN Special Rapporteur Requests the Withdrawal of Changes to the Republic of Srpska Criminal Code: This is a Big Setback in the Protection of Freedom of Expression

Banja Luka, March 15, 2023 – The UN special rapporteurs for the protection of the right to freedom of opinion and the right to freedom of peaceful assembly asked the authorities of the Republic of Srpska to withdraw the changes to the Criminal Code of the RS criminalizing defamation, and this reaction followed the initiative of several civil society organizations, including Transparency International in BiH. In the published letter, the UN rapporteurs analyzed the articles of the law in detail and warned that an arbitrary interpretation of numerous provisions could serve to suppress freedom of speech and expression.

As stated, Article 208a criminalizes the ‘insult’ of another person, and as the term “insult” is very subjective and open to the most diverse interpretations, there is a risk of arbitrary interpretation, which may preclude political cartoons or satire against political figures, which are permitted forms of expression. Also, Article 208c(1) criminalizes if someone “conveys anything from the personal or family life of a person that may harm his or her honor or reputation” and the proposed provision does not establish reasonable exceptions, such as e.g. disclosure in the public interest.

It is also stated that certain provisions may have a harmful effect on the freedom of press by encouraging journalists to self-censor, and it is particularly emphasized that fines are disproportionately high.

The imposition of prison sentence, on the basis of the draft amendments to Article 340, allows serving a prison sentence of up to two years. In this regard, we would like to reiterate the statement of the Human Rights Committee, which emphasizes that a prison sentence can never be an appropriate punishment for defamation,

state the UN rapporteurs, who in their letter recognized the initiative of civil society organizations about the procedural shortcomings of passing the law.

That is why the competent authorities were asked to explain the procedural omissions pointed out by the TI BiH to the Legislative Committee of the National Assembly of the Republic of Srpska, because the text of the preliminary draft and the draft differ, more precisely, the provisions on defamation were inserted later to avoid public participation.

–We were informed that two different versions of the draft amendment were published, the first in February, although no one seems to have seen the draft at the time, and the authorities stated that no draft existed, and the second draft on March 3, 2023. It seems, however, that the chapter on crimes against honor and reputation was not included in the first version. In the explanation of the draft amendments published on March 3, 2023 the Ministry of Justice indicated that it had not received any comments or suggestions by the set deadline of seven days after the publication of the draft in February.

stated by reporters looking for an explanation of how the Ministry ensured the implementation of adequate public consultations.

It is also recalled that the Human Rights Committee emphasized that defamation laws “must not, in practice, serve to stifle freedom of expression”, and that countries should consider the decriminalization of defamation, which was done by Bosnia and Herzegovina, providing a good example in the region 20 years ago. The reporters state that the adoption of these changes would represent a major setback in the legal framework for the protection of freedom of expression in BiH. Also, the proposed amendments would be contrary to the global trend of decriminalization of defamation, which includes the European region, where several EU member states and EU candidate states have abolished criminal defamation, or have taken steps towards its abolition.

Practice in countries has shown that criminal defamation laws are often used against journalists, political opponents, human rights defenders, and other persons who are critical of government officials and policies. The prosecutorial powers of the countries are actually being used to silence legitimate political criticism, according to the memo signed by Irene Khan, Special Rapporteur for the Promotion and Protection of the Rights to Freedom of Thought and Expression and Clément Nyaletsossi Voule, Special Rapporteur for the Rights to Freedom of Peaceful Assembly and Association.

Press rls_15.03.23_

Ref.: OL BIH 1/2023 ENG

Ref.: OL BIH 1/2023 BHS