President Thaci in the first meeting of the Working Group on the Review of the Kosovo Criminal Code, November 2016. | Courtesy of the President's Office.

Defamation draft amendment draws criticism in Kosovo

A German-inspired proposal to amend the Kosovo Criminal Code by adding articles on defamation against the President, government, and state symbols raises alarm amongst law experts and civil society.

A leaked proposal to change the Kosovo Criminal Code with an amendment that criminalizes defamation has alarmed legal experts, journalists, and activists alike.

On Monday, local media reported that the working group on the review and redrafting of the Kosovo Criminal Code, established last November by President Hashim Thaci’s initiative, was proposing to add defamation of the President and Kosovo state symbols to the Criminal Code.

The leaked amendments include Article 134/C, which foresees that “anyone who publicly, in a gathering, or through distribution of written material insults or with ill-intention expresses contempt for the Republic of Kosovo or for its constitutional order, insults the colors, flag, seal, or the anthem of the Republic of Kosovo, is punishable up to three (3) years of prison or a fine.”

Article 134/D of the draft foresees that whoever defames a constitutional body, including the President, Parliament, Government and the Constitutional Court of Kosovo, can be punished with three months to five years of imprisonment.

The news drew an immediate reaction from civil society activists, journalists, and opposition members.

On social media, Vetevendosje MP Puhie Demaku invited people to react.

“I hope that all of you who react when dictatorial decisions happen in other countries will be able to see through the same lenses you use for afar when you look at things up close,” Demaku wrote.

The Ministry of Justice also released a statement, explaining that the draft was in the “consultation phase” and would still have to be commented on by stakeholders and civil society.

“In drafting this amendment, the Ministry of Justice was drawing upon the proposals of stakeholders involved in the [reviewing] process, as well as in the good practices of the European Union countries overall, and the state of Germany specifically,” the Ministry’s press release stated.

Defamation of the president, state symbols, and constitutional organs, including the German government, is included in Germany’s Criminal Code and is punishable with up to five years of imprisonment.

Unlike the Kosovo proposal, the German Criminal Code also includes a section on defamation of persons in the political arena, which protects any individual who is involved in popular political life.

Nevertheless, law experts consider the German law inappropriate and not up-to-date for contemporary Kosovo.

Constitutional law expert Dastid Pallaska called the the proposal to criminalize defamation of state leaders “archaic.”

“This is proven by the fact that in the 21st century no modern German politician has asked for protection based on this legal disposition,” Pallaska wrote.

Kosovo officially decriminalized defamation and insult only in 2012, when the articles on defamation and insult were removed from the Criminal Code. Defamation is considered a civil issue, and is currently regulated by the Civil Law on Defamation and Insult.

According to Donike Qerimi, teaching assistant at the Law Faculty at the University of Prishtina and doctoral candidate at Ghent University, drawing parallels between Kosovo and Germany is problematic because of the two countries’ judicial systems.

“Saying that such a disposition exists in another state with a much more sophisticated judicial system such as Germany is not enough to appease citizens’ concerns,” said Qerimi, adding that lawmakers should consider how laws can be implemented when they make suggestions.

“Germany has an almost perfect judicial system… judges and prosecutors go through countless levels of education and vetting, which guarantee that these crucial positions are only given to extraordinary professionals, and the probability of them being influenced is minimal.”

Furthermore, Kosovo has no mechanism to correct unjust decisions or cases of misuse of these legal dispositions, explained Qerimi.

“The likelihood for a decision to be enforced in a case where this disposition is misused, or if a case is decided upon unjustly, is minimal in a place like Germany, especially because of the balanced system that guarantees accountability and corrections,” she concluded.

Journalists also expressed their concerns on social media, claiming the amendments would curtail freedom of speech. On Tuesday, the national daily Koha Ditore ran with the headline “Suggested amendments to the Criminal Code deemed dictatorial.”

“The objective of such terrible copying of such articles is a fight against every dissenting thought in Kosovo,” wrote journalist and editor Enver Robelli. Last year this 19th century legal disposition was used against the satirist Jan Boehmermann, Robelli explained. Boehmermann was accused of slandering the Turkish President Recep Tayyip Erdogan, but the charges were eventually dropped. Germany seeks to remove the article by 2018, said Robelli.

“Whoever takes public office needs to be able to handle more than [satire], even defamation. We as journalists take that almost every day,” he concluded.

27/04/2017 - 16:02

27 April 2017 - 16:02