Kosovo: Uphold Freedom of Expression and of the Media in Criminal Code

Our Human Rights Ambassador, William Nicholas Gomes, Contacts Kosovo's National Assembly with grave concerns over eroding media freedom.

(HONG KONG) - Kosovo's National Assembly should strike articles that stand in direct conflict with existing international standards on media freedom.

In fact, article 28 of the 2003 criminal code would subject journalists to criminal prosecution for defamatory remarks in newspapers, periodicals, radio and TV, is already out of compliance and raises many questions.

Now Kosovo has returned two articles to President Atifete Jahjaga to be 'reconsidered'. In this day and age, particularly with the Internet connecting the world so completely, it is mandatory that governments finally and permanently do away with archaic demands on media that greatly restrict freedom and simultaneously place the life, livelihood, and well-being of journalists at risk.

The wording in article 37 therefore continues to place journalists at risk of criminal prosecution for conducting investigative reporting into sensitive issues.

These, not surprisingly, include corruption, human rights abuses, general criticism of the government or high-ranking politicians. As our Human Rights Ambassador William Gomes states in his article below, these proposed changes to Kosovo's legal system, "likely to have a chilling effect by encouraging self-censorship by journalists and editors".

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May 12,2012 Building of the National Assembly Mother Theresa Street 10000 Pristina Kosovo Dear Members of the Legislation Committee of the National Assembly, I am William Nicholas Gomes, Human Rights Ambassador for Salem News.com. I am writing to you regarding articles 37 and 38 of the draft criminal code. I understands that the code was returned by President Atifete Jahjaga to the National Assembly on May 8 for reconsideration. Although I have been unable to review an English version of the draft criminal code, I understand that articles 37 and 38 substantially correspond to articles 28 and 29 of the existing 2003 criminal code, which themselves raise concerns in regard to the freedom of press since they criminalize defamation and seek to compel journalists to reveal their sources. I urge the National Assembly to remove articles 37 and 38 from the criminal code in order to bring it into compliance with international standards on media freedom. Media freedom is an essential right in a democratic society. The ability to practice journalism free from interference and to protect sources of information are core principles in ensuring full media freedom. Incorporating articles 28 and 29 of the 2003 criminal code into the new criminal code would directly threaten those principles and thereby undermine media freedom in Kosovo. Under article 28 of the 2003 criminal code, journalists could be subject to criminal prosecution for defamatory remarks in newspapers, periodicals, radio and TV. I understand that the wording of article 37 in the draft criminal code retains the offense and includes provision for prosecution when publication is on the internet. The present wording of article 37 therefore continues to put journalists at risk of criminal prosecution for conducting investigative reporting into sensitive issues, such as corruption, human rights abuses, general criticism of the government or high-ranking politicians. As such, article 37 of the draft criminal code is likely to have a chilling effect by encouraging self-censorship by journalists and editors. Article 29 of the 2003 criminal code states that journalists may be held criminally liable if they refuse to reveal their sources where it is necessary to prevent “a criminal act punishable by a prison sentence of at least three years.” I understand that article 38 of the current draft criminal code corresponds to article 29 of the 2003 criminal code. This means that journalists will continue to risk criminal prosecution for reporting on a wide range of criminal activity. Forcing journalists to choose between protecting their sources and criminal punishment may discourage journalists from addressing sensitive issues, such as corruption or other abuse by authorities or high ranking public officials, and make whistle-blowers reluctant to come forward. Freedom of expression and of the media is guaranteed in both international and regional human rights instruments such as Article 19 of the International Covenant on Civil and Political Rights and Article 10 of the European Convention on Human Rights, international standards which Kosovo has pledged to respect. The European Court of Human Rights jurisprudence on Article 10 states that where there is a conflict between the protection of honor and reputation of politicians and the freedom of press, courts should refrain from applying criminal sentences, in particular imprisonment. Such sentences endanger the very core of the freedom of expression and function of censorship for the entire media and obstruct the press from acting as a public watchdog. Given the incompatibility of articles 28 and 29 of the 2003 criminal code and of articles 37 and 38 of the draft criminal code with international standards, I urge the National Assembly to remove articles 37 and 38 to ensure that Kosovo’s criminal code is in line with international human rights law. Sincerely, William Nicholas Gomes Human Rights Ambassador for Salem News.com www.williamgomes.org

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Salem-News.com Human Rights Ambassador William Nicholas Gomes is a Bangladeshi journalist, human rights activist and author was born on 25 December, 1985 in Dhaka. As an investigative journalist he wrote widely for leading European and Asian media outlets.

He is also active in advocating for free and independent media and journalists’ rights, and is part of the free media movement, Global Independent Media Center – an activist media network for the creation of radical, accurate, and passionate telling of the truth. He worked for Italian news agency Asianews.it from year 2009 to 2011, on that time he was accredited as a free lance journalist by the press information department of Bangladesh. During this time he has reported a notable numbers of reports for the news agency which were translated into Chinese and Italian and quoted by notable number of new outlets all over the world.He, ideologically, identifies himself deeply attached with anarchism. His political views are often characterized as “leftist” or “left-wing,” and he has described himself as an individualist anarchist.