BiH: Republika Srpska reintroduces the crime of defamation

On Thursday 20 July, the People's Assembly of the Republika Srpska adopted the Law on Amendments to the Criminal Code envisaging criminalization of defamation. Calls from international and local actors to protect freedom of speech and withdraw the controversial provision that qualifies defamation as a criminal offence have gone unheeded

On July 18, before the start of the session of the People’s Assembly of the Republika Srpska [in which the amendments on reintroducing criminal penalties for defamation were scheduled for discussion], media representatives, activists and many citizens gathered in the central square in Banja Luka to protest against the announced criminalisation of defamation.

An attack on freedom of expression in Republika Srpska and beyond

In the last months, many media professionals, activists, NGOs, and opposition parties in Republika Srpska, as well as several international organisations and EU representatives, have in various ways opposed the proposal to reintroduce the crime of defamation. However, the leadership of Republika Srpska has remained deaf to repeated calls from those who warn about the risks of criminalising defamation.

As several critical voices argue, the amendments to the Criminal Code of the RS that reintroduce criminal penalties for defamation are contrary to democratic principles and represent a further attack on the already fragile freedom of the media, and more generally on freedom of expression. The opposition and NGOs also point out that the new regulatory provisions are nothing but a weapon in the hands of power to silence dissent and restrict public space, and as such they risk hampering journalistic and investigative work, as well as the efforts of activists and the opposition.

Critics also warn that criminal defamation proceedings against an individual would result in that individual being registered in the register of suspects and, if convicted, in the criminal record. This procedure could make it more difficult for a person accused or convicted of defamation to exercise a whole series of fundamental rights and freedoms, including freedom of movement, the right to education, and the right to work.

During the protest on July 18, Siniša Vukelić, president of the Banja Luka Journalists' Club stated that in the last two decades Republika Srpska has been at the forefront as regards the decriminalisation of defamation in the region. “When we abolished the crime of defamation over twenty years ago, we were the first to do so in the whole region, including the Federation of BiH. We were proud of it. The leadership of Republika Srpska has turned its back on the UN, the Council of Europe, the OSCE and the European Commission, making it clear to human rights defenders and journalists' and citizens' associations that the government doesn't care about their opinion and that it only wants to shield itself from the truth. That’s why the freedom of all of us is at stake here”.

Journalists have repeatedly rejected government officials' allegations, according to which merely journalists inclined towards defamation oppose the reintroduction of the crime of defamation. The journalistic community has made it clear that by launching the campaign "Stop Criminalising Defamation", journalists are fighting not to be able to write what they want, to defame and disgrace others and go unpunished, but to prevent defamation from being criminalised. Journalists also pointed out that defamation is already adequately addressed by the current Law on Protection from Defamation of Bosnia and Herzegovina.

Similarly, members of the RS Assembly belonging to the opposition have harshly criticised the approval of the amendments to the Criminal Code, inviting government representatives to withdraw the controversial provisions on the criminalisation of defamation, also because the RS already has a law on defamation which has been invoked and applied many times by the government itself. Opposition MPs, who voted against the reintroduction of the crime of defamation, believe that the criminalization of defamation, seen as an attack on freedoms in RS, is motivated by political reasons ignoring expert opinion.

The draft law on amendments to the Criminal Code of the Republika Srpska reintroducing criminal penalties for defamation, announced by Milorad Dodik already last year, has been officially proposed by the Ministry of Justice of RS. After the approval of the bill in March, a public consultation lasting sixty days was announced, after which the parliament was called again to express itself on the law.

Explaining the proposed law on amendments to the Criminal Code, Miloš Bukejlović, Minister of Justice of Republika Srpska, said that public opinion actively participated in open discussions after the adoption of the bill. However, representatives of the media and NGOs described these discussions as purely formal, an integral part of a process that is nothing but a farse and an offense to journalists. When questioned by the media, the RS Ombudsman's Office said it had never been consulted on amendments to the Criminal Code concerning the crime of defamation.

A choice incompatible with the European path of Bosnia and Herzegovina

The commitment to guarantee freedom of the press and of expression and to protect journalists is one of the fourteen key priorities that Bosnia and Herzegovina must meet in order to be able to start EU accession negotiations. The EU Delegation in BiH has repeatedly warned that the proposed law on the reintroduction of criminal penalties for defamation in Republika Srpska represents a step backwards in the process of European integration. The EU representatives hoped that the law on criminalisation of defamation would be taken off the agenda of the RS Assembly as it was in total contrast with the European path of Bosnia and Herzegovina.

According to some media reports, the Ministry of Justice, as proposer of the law, published a first bill on its official website and then a second one, different from the first, to confuse public opinion and prevent interested parties from sending objections and suggestions on the proposal to reintroduce the crime of defamation. The media also reported that the Ministry had reduced the deadline for submitting objections and suggestions from fifteen days (set by the Guidelines on consultations in drafting regulations and other general acts of the Republika Srpska) to just seven days.

Government representatives continue to insist that defamation is also a crime in many EU member states. However, experts believe that this explanation cannot be used to justify the reintroduction of the crime of defamation in Republika Srpska, especially considering the complete distrust in the RS judiciary.

RS President Milorad Dodik has announced that he will also introduce a law to allow proclaiming enemies of RS. Then in March the RS government approved a bill, also announced by Dodik, on the transparency of the work of non-profit organisations. This law, as Dodik himself explained, requires NGOs financed from abroad to declare all financial transactions and "everything they do". All the laws proposed by the RS government will undoubtedly be approved by the parliament as the leadership led by Dodik enjoys a large majority.

After the approval of a law by the People's Assembly of the RS, opposition MPs can raise the question of the constitutional legitimacy of the law or of some of its provisions. However, it is necessary to keep in mind the current context has been marked by the tendency of the Republika Srpska to challenge the authority of the Constitutional Court of Bosnia and Herzegovina. It remains to be seen whether this situation could affect any assessment of the constitutional legitimacy of the provisions reintroducing criminal penalties for defamation.

Twenty-two years ago, in July 2001, the People's Assembly of the Republika Srpska adopted a law on protection from defamation, thus moving the question of defamation from the area of criminal law to that of civil law.