Amendments to the Criminal Code of Republika Srpska – Brief Explanation and Analysis
Republika Srpska, a federal unit in Bosnia and Herzegovina (entity), has its own Criminal Code that applies in its territory.
The authorities in Republika Srpska want to adopt the Amendments to the Criminal Code of Republika Srpska (hereinafter: Amendments) by which slander and insult, as well as the disclosure of personal and family circumstances will be criminalised, in the part of the Criminal Code that protects the right to respect reputation and honour.
These Amendments have not yet been fully adopted, but the Draft Law containing these Amendments was passed after the first reading in the legislative body of Republika Srpska (National Assembly of Republika Srpska). Now the public discussion on these Amendments is about to be opened, after which the National Assembly will conduct a second reading. If the Amendments to the Criminal Code are then adopted, the law will enter into force.
2. Ultima Ratio
Republika Srpska already has the Law on Protection Against Defamation in Republika Srpska and the Law of Contract and Torts in place, and defamation cases have been successfully solved in civil suits for the past 20 years.
Insult is regulated as misdemeanour in the Law on Public Order and Peace with significantly lower penalties (from EUR 100 to EUR 400) than prescribed by these Amendments.
So there is an unnecessary double regulation of the same area, and the regression of the legal situation by two decades.
The Ministry of Justice of Republika Srpska, which is the proposer of the Amendments, has not given any explanation and reasons as to why the Law on Protection Against Defamation and the Law of Contract and Torts are not sufficient to effectively protect the right to respect reputation and honour so that criminal proceedings would be necessary.
Also, these Amendments were not put in connections with legal principles defined by the European Convention of Human Rights and the human rights standards adopted by the European Court of Human Rights, and this is an obligation of authorities, as according to the state Constitution of Bosnia and Herzegovina, the European Convention of Human Rights shall apply directly and have priority over all other laws in Bosnia and Herzegovina.
The criminal law is here used as the first and not the last means (ultima ratio) of limiting freedom of expression. Republika Srpska now has good protection of honour and reputation within the framework of civil law, and if the new Amendments are adopted, they could be interpreted broadly and would greatly limit the freedom of expression of media, journalists, activists, NGOs and all other citizens, since they are highly undefined and very broad.
When freedom of expression is restricted, its restrictions must be the “last” line of defence against certain actions and must be narrowly interpreted in such a way as to limit only those actions which are absolutely necessary to be limited. But here, the government wants to use the criminal law to intimidate activists and journalist and to suppress every critical opinion. This is particularly visible from the expressions of politicians from the government who constantly verbally attack and insult the media, journalists and activists. At the same time, they spin the public opinion, leading the public to conclude that independent journalists, media and activists are to blame for the bad state of the country and the entity, and not politicians who manage public resources.
Also, criminal punishment for defamation in Republika Srpska can seriously threaten the role of the media as a “public watchdog” and stifle public debate. Journalists should be able to do their jobs without fear, instead of having to worry about prosecution and sanctions. These Amendments will certainly have a chilling effect on the freedom of expression.
It is clear that criminal punishment would have a deterrent effect on those who wish to express themselves freely (political opponents, human rights defenders, journalist, activists, NGOs, etc.), especially in a closed society, where there is an atmosphere of fear and fear of politicians, such as in the society in Republika Srpska and the whole Bosnia and Herzegovina. A deterrent effect in this sense can arise not only from a possible sanction, but also from the very fear of sanctions, even if it is established that no criminal offense has been committed.
3. Unclear Provisions and Legal Uncertainty
If these Amendments were to be adopted, the citizens would not know for sure what is prohibited and how to ensure that they do not commit these criminal offenses in their daily communication. Also, by these Amendments, the authorities would lower the bar below the standards that have already established in misdemeanours or in the civil law protection. Therein lays a very dangerous consequence of imprecise and unclear provisions, hence the meaning and the scope of the provisions themselves will be defined through practice.
For example, prescribing of insult as misdemeanour was carried out by the adoption of the Law on Public Order and Peace, which states that “whoever, by rudely insulting another person on a political, religious or national basis or by other reckless behaviour, causes a feeling of physical danger or disturbance of citizens shall be punished with a fine of BAM 200 to BAM 800.”
The prescribed misdemeanour, in contrast to the criminal offense of insult in the Amendments, prescribes the basis of insult and behaviour, and then stipulates the consequence that is reflected in the feeling of physical danger or disturbance of citizens. We do not find any subsequent consequence in the Amendments or any description of an action that could constitute an insult. This way of defining criminal offense opens up too wide a range of interpretation and definition of an offense in the criminal sense, and leaves too much freedom for the prosecutor to determine the definition of an offense on case-to-case basis and to measure someone’s criminal responsibility accordingly.
As the term “insult” is highly subjective and open to widely varying interpretations, there is a risk this will be interpreted in an arbitrary manner. Because of the vague and overly broad nature of this article, it may preclude political cartoons or satire of political figures.
Besides that, these Amendments will lead to legal uncertainty because Republika Srpska will have insult as a misdemeanour and as a criminal offense at the same time, and that will confuse competent authorities in their actions since they will not be able to assess whether it is a misdemeanour or a criminal offense. Also, in the insult as misdemeanour we have the term of “rudely insulting” which is above the standard provided for insult in Amendments, which have only basic “insult”. This means that misdemeanour is harder for the perpetrator than criminal offence [sic!], and constitutes a significant legal uncertainty.
The criminal offense of defamation is prescribed in the Amendments in such a way that it is not necessary for the injured party to suffer damage at all, unlike defamation in civil law defined by the Law on Protection Against Defamation. This means that the Criminal Code will have lower standards that those established in the civil law protection, and that people will be punished more harshly under the criminal law than under the civil law, which is unattainable in a democratic society both in the sense of the rule of law, and also constituting a significant legal uncertainty.
Insult and defamation are not the only serious problems in these Amendments. There is also an article stipulating that “whoever relates or disseminates anything from the personal or family life of a person that may harm their honour or reputation” will be fined. This is a quite unclear provision. What exactly is “anything” from a person’s personal and family life? Is it public disclosure of malfeasance by someone who has family ties with certain politicians and bringing them and that politician into connection? Is it also when you talk in public about domestic violence committed by someone? Is this the case when talking about thefts committed by the adult children of certain public figures?
A huge problem is that the proposed Amendments do not recognize the concept of “public interest“ which means that the perpetrator will be convicted even though they expressed information and content of public interest. Therefore, the Amendments will deter people from talking about problems in the society, as well as from criticizing the illegalities and bad actions of the authorities.
The Amendments are full of such and similar ambiguities, which in practice will lead to arbitrariness, drastic law enforcement against those who speak freely, and stifling the freedom of expression.
4. Excessive Fines and Prison Sentence
In the Amendments that were passed in the first reading by the National Assembly of Republika Srpska, the fines for these “future” crimes vary from EUR 2500 to EUR 60000.
No prison sentence is directly prescribed, but a fine shall be converted into a prison sentence if the fine is not paid in full, according to other provisions of the Criminal Code. The prescribed imprisonment in this case is up to two years, depending on the amount of the unpaid fine. The average net salary paid in February 2023 in Republika Srpska was approximately EUR 600 according to the official institute for statistics, but the real average net salary was estimated to approximately EUR 400. This means that most citizens will not be able to pay these fines and would go to prison in case of defamation, insult and disclosure of personal and family circumstances.
This is against the principles established by the European Court of Human Rights as well as many international organizations, such as the United Nations or the Organization for Security and Co-operation in Europe.
Also, anyone who commits these crimes will have an official criminal record, and this will be limiting for them in many ways and affect them in many segments of life – from having employment opportunities to travelling abroad.
Further, a big problem is that investigations in such cases, according to current practice in other provisions of the Criminal Code, can last for 6, 7 or 10 years, and during all this time an individual cannot be issued a certificate of not having any criminal proceedings conducted against them. This will also limit their employment opportunities or travelling during that period, even if it is established that no criminal offense has been committed.
5. Spill-Over Effect and Unequal Rights
Since defamation is not a criminal offense in the Federation of Bosnia and Herzegovina (other entity – federal unit of Bosnia and Herzegovina) or in the Brčko District of Bosnia and Herzegovina (independent administrative unit; district – condominium of two federal units), we would find ourselves in a situation where there would be unequal rights and obligations within one state. Thus, one could be criminally liable for certain expressions in Republika Srpska, while in other parts of Bosnia and Herzegovina this would not be the case.
There is also a fear of a spill-over effect to the entire country. These Amendments will be applied in the territory of Republika Srpska to all citizens who commit a crime in that territory, whether they are citizens of Republika Srpska, foreign nationals or citizens of other part of Bosnia and Herzegovina. Also, politicians in the Federation of Bosnia and Herzegovina are waiting to see how the situation in Republika Srpska will develop so that they too can limit the freedom of expression of citizens in that federal unit through new undemocratic laws.
Therefore, the changes in the law in Republika Srpska are not stifling freedom only in Republika Srpska but for all of citizens in the entire Bosnia and Herzegovina. It is an attack on civil society, media, and any kind of criticism.
As one of the arguments for prescribing defamation and insult within the criminal law, the authorities from Republika Srpska state that many countries in the European Union also have defamation within the criminal law. This is done on purpose in order to spin the public opinion.
Why? Namely, most countries of the European Union have independent judiciary, independent courts and the prosecutor’s office. There is no independent judiciary in Bosnia and Herzegovina, but there is a huge degree of dependence of judges and prosecutors on the executive power, and corruption at a very high level. Judges are afraid to bring verdicts against politicians from the government, and the judicial mechanism itself will in this case be used to persecute the activist, journalist, dissenters and all critical voices, and not for the administration of justice.
We can only imagine what kind of situations we would find ourselves in, if someone in the government system asked a prosecutor to prosecute a certain journalist or another citizen for defamation, due to writing that was aimed at criticizing the government, its actions and uncovering malfeasance.
6. Lack of Procedures, Transparency and Involvement of Civil Society
These Amendments were announced on the Twitter profile of the now President of Republika Srpska Milorad Dodik; but in the time of the announcement he was only the president of his political party Alliance of Independent Social Democrats (hereinafter: SNSD), and not officially the President of Republika Srpska. Milorad Dodik, as the president of SNDS, asked the Government – the Ministry of Justice, to prepare new and amend existing laws, inter alia, Criminal Code of Republika Srpska.
According to the Constitution of Republika Srpska and the Rules of Procedure of the National Assembly, Milorad Dodik can propose a law in acting as the president of the Republika Srpska, but as the president of SNSD, he cannot. However, according to the Rules of Procedure, there is a possibility of submitting an initiative for the adoption of a law that can be given by political and other organizations, but that initiative must be submitted to the President of the National Assembly, not to the Government, as was done in this case.
Analyses, reviews and comments by civil society organizations to the Amendments were not transparently circulated, and are not allowed by the authorities.
Two different versions of the draft Amendments were published, one in February 2023, which did not include a chapter on criminal offences against honour and reputation, and another draft on 3 March 2023, with chapter on criminal offences against honour and reputation.
In the explanatory note to the draft Amendments published on 3 March 2023, the Ministry of Justice indicated that no comments and suggestions were received by the given deadline, but comments could not be made as the draft Amendments was not made public until 3 March 2023.
7. Candidate Status of Bosnia and Herzegovina and Freedom of Expression
Opinions of different international organizations such as the Council of Europe, European Court of Human Rights, the Organization for Security and Cooperation in Europe and the United Nations, as well as the human rights standards for freedom of expression were not taken into account at all in the preparation and discussion about these Amendments.
Finally, these Amendments would restrict the freedom of expression guaranteed by the Constitution of Republika Srpska, the Constitution of Bosnia and Herzegovina, the European Convention of Human Rights, the International Covenant on Civil and Political Rights, etc. for many journalists, media, NGOs and other citizens in Republika Srpska.
The framework for obtaining the candidate status of Bosnia and Herzegovina clearly states that Bosnia and Herzegovina must meet certain requirements, among which it must guarantee the freedom of expression and freedom of media, as well as the protection of journalists. The legal initiatives taking place in Republika Srpska are the absolute opposite of that.
The United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression and the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association gave their overview of these Amendments and emphasised that they demand that authorities withdraw the proposed Amendments and abandon the criminalisation of expression through the criminal law:
“The criminalisation of defamation could have a negative impact on the human rights situation in the country, in particular on free and inclusive political discourse, the right to seek, receive and impart information, and press freedom. The adoption of the amendments would constitute a major retrogression in the legal framework for the protection of freedom of expression in Bosnia and Herzegovina. The proposed amendments also would go against a global trend of decriminalising defamation, including in the European region where several EU or candidate member states have abandoned criminal defamation or have taken steps towards abandoning it.”
Text of the Problematic Amendments
(1) Whoever insults another person shall be punished with a fine ranging from BAM 5000 to BAM 20000.
(2) If the act referred to in paragraph 1 of this Article was committed through press, radio, television or other means of public information or at a public meeting or in another way, due to which the offense became accessible to a large number of persons, the offender shall be punished with a fine ranging from BAM 10000 to BAM 50000.
(3) If the offender was provoked by improper behaviour of the offended party or the injured party accepted their apology before the court for the committed act, the court may remit punishment.
(4) If the offended party reciprocated the insult, the court may remit the punishment of both parties or one of the party.
(1) Whoever states or conveys something untrue about another person that may harm their honour or reputation, knowing that what they state or convey is untrue, shall be punished with a fine ranging from BAM 8000 to BAM 30000.
(2) If the act referred to in paragraph 1 of this Article was committed through press, radio, television or through social media, at a public meeting or in another way, due to which it became available to a larger number of persons, the offender shall be punished with a fine ranging from BAM 15000 to BAM 80000.
(3) If what is presented or conveyed has led or could lead to serious consequences for the injured party, the offender shall be punished with a fine ranging from BAM 20000 to BAM 100000.
Disclosure of personal and family circumstances
(1) Whoever relates or disseminates anything from the personal or family life of a person that may harm their honour or reputation, shall be punished with a fine ranging from BAM 10000 to BAM 40000.
(2) If the act referred to in paragraph 1 of this Article was committed through press, radio, television or through social media or at a public meeting or in another way, due to which it became available to a larger number of persons, the offender shall be punished with a fine ranging from BAM 20000 to BAM 100000.
(3) If what is related or disseminated has led or could lead to serious consequences for the injured party, the offender shall be punished with a fine ranging from BAM 25000 to BAM 120000.
(4) Veracity or falsehood of related or disseminated information from the personal or family life of a person may not be evidenced, except in the cases referred to in Article 208d of this Code.
Some parts of this Analysis are paraphrased from
- Article written by Dejan Lučka “Do we Need Defamation as a Criminal Offense?”
- The Analysis written by Jovana Kisin-Zagajac, Aleksandar Jokić and Dejan Lučka
- BUKA interview with Dejan Lučka “New Laws – Silencing Free-thinking People and the Media”
- UN Special Rapporteurs Communication Sent to the Authorities in Bosnia and Herzegovina, regarding the Draft Amendments to the Criminal Code of Republic of Srpska and
- Draft Amendments to the Criminal Code of Republika Srpska.
 EUR 100 to EUR 400; BAM 1 is EUR 0.5; BAM – Bosnia and Herzegovina convertible mark;