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Republika Srpska (Bosnia and Herzegovina): Decriminalise Defamation

In our most recent legal analysis, ARTICLE 19 reviews the suggested amendments to the Criminal Code of Republika Srpska on re-introducing criminal penalties for defamation, insult, and other similar provisions. This change to the criminal code is a step back in protecting freedom of expression and will undeniably have a chilling effect on public debate. ARTICLE 19 calls for full withdrawal of these proposals.

Republika Srpska, a constituent entity of Bosnia and Herzegovina, has historically dealt with defamation, insult, and similar offences through civil law. On 23 March, the National Assembly of Republika Srpska voted in favour of amendments to the criminal code that re-introduce criminal penalties for defamation. The new provisions are vague, impose high fines up to 64 times the average monthly salary, and, in certain cases, imprisonment, and would impact the criminal records of anyone found guilty.

Any restriction on expression must fulfil the three conditions: it must be provided by accessible and precise law, it must pursue a legitimate aim, and it must be necessary and proportionate, not intruding more than is needed to achieve the intended legitimate aim. While protection of reputation is a legitimate aim and may justify restrictions of certain expressions in line with international standards, criminalising defamation is never necessary or proportionate and any law to that effect is, in and of itself, a violation of the right to freedom of expression. 

Furthermore, the new legislation is not specific or clear enough to allow citizens to regulate their conduct according to the law. Article 208a punishes ‘insult’ with a high fine and criminal penalties but does not define ‘insult’, leaving room for arbitrary application and intensifying the chilling effect that comes with criminalisation. The same article also does not distinguish between statements of fact (that may be verified in court) or statements of opinion that bear no burden of proof, leaving a clear path to penalise anyone who expresses opinions perceived as offensive or insulting, which is contrary to the existing human rights standards and the practice of the European Court of Human Rights.

We urge Republika Srpska legislators to eliminate these provisions in their entirety and ensure any defamation, insult, or privacy law is in line with international human rights standards. As they currently stand, the new provisions will stifle journalism, public debate, and civil discourse that is essential to society.

Source: article19