Article 19, an international organization promoting freedom of expression and part of the esteemed Media Freedom Rapid Response (MFRR) consortium, urges Croatian authorities to completely withdraw the controversial Article 307a of the Criminal Code, known as “Lex AP,” as it represents a significant threat to freedom of expression and must be urgently reconsidered.
Furthermore, “Lex AP” would not pass the European Court of Human Rights’ three-part test for assessing the necessity of speech restrictions. The Article 19 team, which focuses on legal and policy analysis, concluded that the introduction of Article 307a constitutes an undue interference with freedom of speech and restricts the ability of journalists and other actors to publish information of exceptional public importance. Additionally, Article 19 views these amendments as contrary to international standards for freedom of expression.
Contrary to the Government’s Arguments
Contrary to the ruling party’s argument that such legal provisions are common in most EU member states, Article 19 asserts that Croatia should adhere to the standards developed in the practice of the European Court of Human Rights when limiting the disclosure of information related to criminal investigations, aiming to protect the right to a fair trial and judicial impartiality. The Court applies a three-part test to evaluate the justification for government interference in freedom of expression, assessing whether the restriction is necessary, whether there is a pressing social need for such a restriction, and whether the sanctions are proportionate. According to Article 19’s analysis, Article 307a fails on all three counts.
Necessity of the Restriction
Article 19 notes that the Criminal Code already protects the confidentiality and integrity of judicial proceedings. Violations of judicial confidentiality and disclosure of “professional secrets” are already punishable. Therefore, they argue that there is no need to introduce another criminal offense, as it will inevitably be counterproductive and restrict access to information.
The proposed changes to the Criminal Code also overlook the fact that disclosed information may already be available in the public domain, thus eliminating the need for a ban on its disclosure. As demonstrated by the case law of the European Court of Human Rights, restrictions on disclosure are permissible only to the extent that they significantly disrupt key elements of the judicial process, such as judicial impartiality or the presumption of innocence.
Pressing Social Need
Despite provisions excluding the criminalization of journalists and the disclosure of information aimed at protecting crime victims, there is a risk that the concept of journalism could be narrowly interpreted, excluding freelancers, bloggers, human rights activists, and others performing journalistic functions.
Article 19 shares the Croatian Journalists’ Association’s (HND) concern regarding amendments to the Criminal Code that could potentially hinder journalists from gathering information about criminal investigations. This could lead to a reduction in media reporting and limit public access to relevant information about ongoing criminal processes and investigations. The fear of criminal prosecution might deter potential whistleblowers from exposing human rights violations, corruption, and abuse of power, according to Article 19. Additionally, as currently interpreted, the public interest exception depends on a ‘prevalent’ public interest threshold, which further opens the door for potential abuse of power.
Proportionality of Sanctions
According to Article 19, resorting to criminal law to regulate the disclosure of information is problematic in itself. Viable alternatives could protect the integrity of the judicial process without resorting to criminal sanctions. Furthermore, imprisonment as a potential sanction is highly disproportionate and will likely discourage various stakeholders in the criminal justice system from engaging with journalists or reporting potential violations and abuses within the judicial system.
A comprehensive analysis can be found at the link.