“Speech crimes” in a new clothes

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Source/Author: safejournalists.net / Vuk Cvijić
Source/Photo: Photo: Pixabay

BELGRADE, 18.09.2018. – In a country like Serbia where media freedom and journalists are becoming more vulnerable, an unusual inquisitorial law is proposed suggesting that journalists could go to prison for as much as three years

The Constitution of Serbia and the European Convention on Human Rights grant every citizen the right to information as well as freedom of speech. A part of the split Belgrade Bar Association (AKB) led by Yugoslav Tintor is trying to put in jeopardy precisely these rights requesting the introduction of a criminal offense of violation of the presumption of innocence by which journalists could be sentenced to three years in prison. The proponents of this law foresaw a prison sentence for journalists even when they report a public statement of the representatives of the state. Although the authorities did not pronounce themselves on these proposals, our expert interlocutors consider them as very dangerous for the Serbian society and argue that such legal solutions do not exist in other European states. Besides, our interlocutors point to the fact that the presumption of innocence is most often violated by the sate representatives themselves.

Former President of the Supreme Court of Serbia, Vida Petrović Škero, explains that the proposal to introduce the violation of the presumption of innocence as a criminal offence represents a great danger for the freedom of speech.

“We have three rights that can clash: every citizen has the right to have information on crime, public figures and state institutions, as well as the right to freedom of speech, and on the other hand we have the right to a fair trial, of which the presumption of innocence is an integral part and it must not be violated. The boundaries are difficult to determine. Sometimes it’s more important to inform the citizens. The Constitution and the European Convention on Human Rights require every citizen to have the right to information as well as freedom of speech, “said the former President of the Supreme Court.

She notes that in practice the media do not violate the presumption of innocence as much, but that most often the tabloids do it in the titles, but not in the text of the article.

“The presumption of innocence is most often violated by those who talk about it: the politicians. A journalist cannot be responsible for reporting everything that was said at a press conference or received from official documents. Through the introduction of a new criminal offense, the violation of the presumption of innocence will not be prevented. This can be done by educating politicians, police officers and journalists, “says Petović Škero, who is the first of the Serbian magistrates to apply the provisions of the Convention on Human Rights in a judgment.

The judge of the Appellate Court Miodrag Majic is also opposed to this proposal. He says that it is wrong to consider that criminal law, which should be the last resort by which society regulates human relations, should protect the presumption of innocence.

“Journalists and the media should understand that it is important to respect this guarantee. The basic level of protection should be assured by professional associations of journalists and regulatory bodies, such as REM (Regulatory body for electronic media). The existing Information Law also provides some protection mechanisms. I think that the media must to establish some rules to govern themselves that would prevent the need for someone else to do it, “says judge Majic.

He warns that statements of politicians bear the greatest weight and that when they violate the presumption of innocence, this is a great danger, because they are “not only careless at some point, but also set a direction for other people to follow.” Judge Majic points out that there is a conflict between the right to the presumption of innocence and the right to freedom of speech and the media.

“This problem is particularly sensitive in societies like ours where the institutions are left hanging in the wind. We are often witnessing the clash between freedom of expression, and on the other hand, a state apparatus that has the possibility of crushing an individual via violating his presumption of innocence l, “says Judge Majic.

Everyone agrees over an undeniable fact that mainly state representatives violate the presumption of innocence and that media freedoms are threatened.

Professor Bogoljub Milosavljević from the Law faculty of the Union University says that the proposal to introduce the criminal offence of violation of the presumption of innocence has to be more than anything considered from the perspective of media freedom and the right of journalists to openly report on everything.

“The violation of the presumption of innocence is not resolved through punishing journalists. Rather, they can receive instructions on how to report. To persecute and threaten journalists is certainly not the right way. We are experiencing important arrests, announced by officials, when they do not take care of the presumption of innocence. It is obvious that primarily politicians do not respect the presumption of innocence”, says professor Milosavljević.

Deputy Prosecutor of the Republic Goran Ilić, who is simultaneously commissioner for the independence of state prosecution, says that the European Court for Human Rights in one decision provides the opinion that the presumption of innocence should be respected not only by the judges but also by other state officials.

“In relation to this an extremely ‘harsh’ condition is set for stat officials stating that it is enough that the official voices the opinion that someone is guilty for the presumption of innocence to be violated. On the other hand, the European Court for Human Rights considers that the public has the right to be informed about the criminal proceedings, but with care and respect for the presumption of innocence, as well as that the pronounced public character of a concrete court case, and the mixing of roles of the accused and the sentenced can put in jeopardy the presumption of innocence and the right to a fair trial. In the case Deroj and Malari versus France the court said that journalists have to take care of the presumption of innocence during a trial, but that at the same time, have the right to report on the ongoing cases, in other words that the press has the right to inform the public on cases of wider interest”, says prosecutor Ilić.

He also states that taking into consideration the jurisprudence of the European Court for Human Rights and the media reality in Serbia, there is no doubt that public officials, some journalists, and state representatives in particular, should refrain from violating the presumption of innocence.

“However, I don’t think that violating the presumption of innocence should be sanctioned as a separate criminal offence. More precisely, I am not convinced that this is a good way to protect the presumption of innocence and by consequence the right for a fair trial”, says prosecutor Ilić.

European Court of Human Rights

In recent decisions, the European Court of Human Rights has given priority to freedom of expression, regardless of the possible violation of the presumption of innocence. The Court also noted that the general public normally has a legitimate interest in being informed about criminal proceedings.

“Care should be taken to ensure that citizens and journalists are not discouraged and do not state that they do not express their opinion on problems of public interest from the fear of criminal and other sanctions,” the European Court of Human Rights stated.

Serbia and the Socialist Federative Republic of Yugoslavia, as a product of a totalitarian Communist system limited the freedom of speech and used infamous “speech crimes” for decades. Getting rid of the totalitarian heritage was slow. For a brief instance article 336a forbidding to comment the judgments of the court was introduced in the current penal code. It is interesting that some of the strongest criticisms against this provision at the time  came from the lawyers that are now asking for prison sentences for journalists.

President of the second part of the split Belgrade Bar Association Vladimir Gajić reminds that at the time of this criminal law, both journalists and lawyers had a same position trusting that the criminal offense in question should more than anything render impossible exposing to the public court decisions.

“It is paradoxical that now, a part of the Belgrade Bar Association makes a proposal that would, more than anything and directly impact the limiting of the freedom of the press. Those making the proposal go so far as to suggest criminal responsibility for journalists even if they report statements of other people. I personally consider this to be a great disgrace for the legal profession”, says Gajić.

At the same time, he considers, looking from a purely legal perspective, the proposal to be nonsensical.

“The Constitution of Serbia protects the presumption of innocence in Article 34, paragraph 3; Everyone shall be considered innocent of a criminal offense until his guilt is established by a final decision of the court “until the Code of Criminal Procedure stipulates in Article 3” everyone is considered innocent until his guilt for the criminal offense is determined by a court decision. In paragraph 2 of Article 3 of the Code of Criminal Procedure, it is stipulated that more or less everyone is obliged to abide by the rules on the presumption of innocence, although this provision has no sanction, which in fact means that if someone does not comply with these provisions, a person who considers his violation of his presumption of innocence to be a violation of his civil claim, may require damages, “Gajic said.

He further explains that the essence of the presumption of innocence is that it obliges the prosecutor to prove that someone has committed a criminal offense before a competent court, which means that the prosecutor is the one who must respect it.

“And here the whole story of the presumption of innocence ends. In a democratic society, priority is given to the freedom of the press, which has the right to push to the limits its freedom of speech, which is one of the most important human rights, “says lawyer Vladimir Gajic.

Experienced journalist Milos Vasic points to the fact that the presumption of innocence is most often violated by the regime’s media, and recalls that the Serbian President himself, Aleksandar Vucic, did so several times.

“The proposal of the work of the Bar Association of Belgrade led by Yugoslavia Tintor is nonsense. There will be nothing of that. It’s just a waste of time. I do not remember that in my life I broke the presumption of innocence. I wrote that someone was charged with something, and I did not write that someone was a thief and a killer. For some, I have alleged that they are liars, but this is proven, “says journalist Vasic.

Initiative of the part of the Belgrade Bar Association, to propose a new criminal offense for journalists, came after the media reported about obstructions and logical fallacies that accompany the trial of the heads of the State Security from the time of Slobodan Milosevic, charged with the murder of journalist Slavko Curuvija. The lawyers of the heads of the secret service accused for the murder of journalists are members of precisely this part of the split Bar Association. They were annoyed with the reports of the rare free media in Serbia. For example, they reported on changes in the testimony of witnesses in contact with Branko Crni, who served as a deputy of the  indicted head of the State Security, Radomir Markovic, and is now a member of the Central Committee of the ruling Serbian Progressive Party (SNS).

This attempt to place media under control with threats to prison sentences unambiguously resembles a scenario when Slobodan Milosevic’s regime wanted to silence free journalists at the end of the nineties. Now known facts that the murder of Ćuruvija was preceded by a state-run smear campaign against free media in which the State Security, that was then led by the Accused for the murder of Ćuruvija, formed the Media Monitoring Working Group, and on 21 October 1998, the infamous Public Information Law was passed. Today, also synchronized, with the draft law of Tintor’s Bar Association, the Minister without Portfolio in charge of Innovation and Technological Development Nenad Popovic is seeking the formation of a Working Group for the Defense from Fake News, and this proposal was forwarded to the President of Serbia, Aleksandar Vucic, who was the Information Minister at the time of the 1990s smear campaign. Vucic did not pronounce himself on the issue, except that he said that he hadn’t seen Popovic’s proposal.

Lawyer Vladimir Gajic says that motives behind the proposal of the Bar Association of Belgrade are crystal clear.

“This proposal came precisely at the moment when, in the perhaps most important trial in Serbia after the trial for the assassination of Prime Minister Zoran Djindjic, the Trial Chamber tries to isolate as an unlawful crucial evidence provided by the Prosecutor’s Office for Organized Crime. As the trial for the murder of Slavko Curuvija would not have taken place without the journalists, so the journalists pointed out to the public what was going on at the trial at the crucial moment in the process. Exactly then, lawyers come to the idea of introducing a criminal offense of violating the presumption of innocence because they were terrorized by the fact that journalists allegedly violate the presumption of innocence of former heads of State Security from the Milosevic regime’s time, “Gajic said. He recalls that the court-established fact that the DB participated in the murder of Ivan Stamblic, two assassinations of Vuk Draskovic and the murder of Zoran Djindjic.

“They killed the former President of Serbia, the former Prime Minister, and twice tried to kill the then leader of the opposition, Vuk Draskovic. The Secret Service, after having taken under control several panels of judges in the Special Court, now showed that it rules over parts of the Bar Association. The end of the trial for the murder of Ćuruvija is approaching, the patience is running out, and a part of the lawyer’s professions has irremediably embarrassed itself, ” says Gajić.

Freedom of the media is threatened, journalists are under pressure, and more frequently exposed to physical attacks, as reported by the European observers and international journalists, but also domestic associations, first and foremost the Independent Association of Journalists of Serbia (NUNS). At the same time, representatives of the current government in Serbia, who also participated in Slobodan Milosevic’s government, often avoid facing, or relativize state crimes from the time of the conflict of the 1990s, which were always preceded by pressure on the media. Therefore, the silence of the Serbian authorities on the proposal of an inquisitorial provision that would impose a prison sentence on journalistic work may not be surprising, but certainly worries.

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This article has been produced as a part of the project Western Balkan’s Regional Platform for advocating media freedom and journalists’ safety with the financial assistance of the European Union. The contents of this article are the sole responsibility of the Independent Journalists’ Association of Serbia and its authors, and can in no circumstances be regarded as reflecting the position of the European Union.