I believe the continuation of this famous quip by the great poet is generally known, but to what extent is it generally known that as early as next week such words, if used in the context of referring to the supreme proposer of everything existing and non-existing including all laws in RS, will become the subject of criminal prosecution?
It is undoubtedly a futile endeavor to engage in argument with someone who employs fraudulent actions and deceptions. But sometimes one must resort to this, not to make that someone see reason, but to raise awareness among those against whom what that someone is doing is directed. That someone in this case is the formal proposer of the Law on Amendments to the Criminal Code of Republika Srpska, which, among other things, criminalizes defamation and insult.
A good proposer, one would say, a man of the people, guided by an invisible hand. By all accounts. But let us proceed in order.
As even stated in the materials accompanying the draft itself, this Law was not planned in the annual work plan of the Ministry of Justice. How then did it even find its way into the Ministry’s work with such a degree of urgency, at the very beginning of the mandate and at the very beginning of the year? Were there justified reasons for this?
Furthermore, the materials state that the draft processor determined that the Law is of public interest and that in accordance with the Consultation Guidelines, consultations were conducted in such a way that the draft text was published on the RS Government website to which there were no objections.
Unscrupulous deception! Even if the text was actually published on the Government’s website for 7 days, can anyone really consider this genuine consultation? Judging by the avalanche of public reactions from media, journalists, international organizations, civil society, unions and the like, none of them were aware of the consultations and the objections are overwhelmingly negative in nature.
In Chapter II. Explanations – Compliance with the constitution and legal system and rules of normative-legal technique – it is stated, regarding changes in the part introducing criminal offenses against honor and reputation, that they are introduced to protect human dignity, honor and reputation guaranteed by Article 10 of the RS Constitution. There is no mention in this part of the fact that these values have been protected until now as well.
In Chapter III. –
Finally, in Chapter IV. –
Furthermore, countries in the region are exhaustively listed, including Serbia and Montenegro, in which defamation is a criminal offense. Again
However, aside from the deception regarding regional countries, the fact that a number of EU countries still have defamation as part of criminal legislation stands. But it is equally true that prosecution of these offenses is approached extremely rarely and restrictively, and that resolutions of all relevant international bodies call for defamation and insult to be decriminalized.
The part of the explanation relating to impact assessment is completely tragicomic, so it is worth quoting, not to expose the author to ridicule, but as an illustration of the level of competence of people working on the most complex tasks in public administration.
“The goal to be achieved by adopting the law is to improve criminal-legal protection of citizens. When determining options for achieving goals and their analysis, it was determined that the goal can only be achieved through regulatory measures, as this concerns the criminal-legal area. Due to the impact on the public budget, a positive impact can be expected due to the collection of monetary penalties for newly prescribed offenses against honor and reputation.”
So really, if it were not sad, it would be funny to call this an impact assessment.
Apart from being tautologically set up in a way that says the goal is criminal-legal protection, so the only option is criminal-legal, what the problem is with the current method of civil-legal protection according to the Nobel laureates from the Ministry of Justice we will never know. It is particularly comical that it anticipates positive effects for the budget through penalty collection, while completely ignoring the additional cost to prosecutors’ offices working on these cases.
Given the complete incoherence of the draft’s explanation, one should still try to discern the purpose and goal. Let us start with the purpose of the proposed solutions to return defamation and insult to the domain of criminal law through the prism of fundamental principles of public policy and law. So let us proceed in order.
One of the fundamental principles of public policy and law, the principle of proportionality, requires that the state use means to achieve a legitimate goal only to the extent necessary, especially when dealing with means that invasively act in the area of human rights and freedoms. We believe that even the proposer of these unfortunate law amendments, if we imagine a situation where they have at least a minimum of autonomy of will, is familiar with the story of Draco, after whom the phrase draconian sanction remains in use today.
Well, precisely according to that principle of proportionality as fundamental and starting, one cannot, using any analytical technique, discern the need and purpose of returning defamation and insult from the civil law area to the domain of criminal law protection.
The principle of economy, which requires achieving the goal with the least possible costs, is also neglected, given that such solutions will result in the appearance of a public prosecutor instead of the plaintiff as the injured party in the current solution, causing additional costs that are completely unnecessary. Under this principle can also be included the fact that we already have 20 years of legal practice in civil law protection from defamation, and now we will discard this and start with completely new practice, investing additional resources in prosecutor education. This is even completely harmful from a cost-benefit analysis perspective.
The principle of efficiency, according to which the achievement of policy or law purposes should occur with the least possible costs and in the shortest time with appropriate quality of results, respecting public interest and rights and freedoms, is completely ignored. Placing defamation and insult in the domain of criminal protection, from this aspect, is completely unjustified, even socially harmful.
If prosecutors’ offices through criminal prosecution fail to protect much more important public goods, such as public resources or even citizens’ lives, as evidenced by the fact that BiH is characterized as a captured state with systemic presence of corruption, it is completely unjustified to put in their mandate the protection of social goods of lesser importance that can be much more efficiently protected in another way, as is currently the case through civil law protection.
And finally, but no less important, quite the contrary; the space for abuse left by these solutions is enormous and it is difficult to even predict all possible ways of abuse. Therefore, the very risks from different interpretations of defamation and insult, whether intentional caused by inappropriate influences, or due to ignorance, should and must be the subject of serious professional discussion.
But let us proceed in order. All relevant assessments of the state of BiH judiciary agree in the assessment that the judiciary in BiH is
Therefore, in such a context, such a lethal instrument for persecution of regime dissidents is placed in their hands. Even with existing legal provisions, dissidents have been persecuted or the regime protected; let us remember the case of the raid on Klix a few years ago or the recent Morač case.
It can be concluded that these amendments are not only completely unjustified for any rational reason, but completely harmful because they introduce open repression and cause additional costs that citizens will again pay.
In short, citizens’ freedoms are drastically restricted at citizens’ expense.
