ARTICLE 19 reviews the Amendments to the Criminal Code that introduce criminal sanctions for the disclosure of ‘non-public’ information about pending criminal cases. We call on the legislators to repeal the Amendments, as they do not comply with international standards on freedom of expression. The Amendments, in particular Article 307a, represent a disproportionate interference with freedom of speech and restrict the ability of journalists and other actors to access and disseminate information of great public relevance.
The Parliament of Croatia has recently adopted the Amendments, known as ‘Lex AP’ to the Criminal Code. These introduce criminal penalties for disclosing information about investigative actions or evidence in criminal proceedings. ARTICLE 19 has reviewed the Amendments against relevant international and regional standards concerning:
- The right to freedom of expression and information
- Protection of journalists and journalistic sources
- Balancing the need for public information on criminal investigations with protecting fair trial rights and judicial impartiality
In addition, ARTICLE 19 has analysed the Amendments against the ‘three-part test’ for restrictions, which includes necessity of restrictions, a pressing social need, and proportionality of the sanctions.
ARTICLE 19 observes as follows.
Necessity of restrictions
ARTICLE 19 notes that the Croatian Criminal Code already protects secrecy and integrity of the justice process. Namely, the breach of secrecy of judicial proceedings and disclosure of ‘professional secrets’ are already punishable by criminal sanctions. We believe there is no need to introduce an additional criminal offense, as it will inevitably have a counterproductive effect and will restrict access to information. The Amendments also ignore the possibility that disclosed information may already be available in the public domain, which eliminates the need to prohibit disclosure.
We are concerned that the Amendments take a formalistic approach to protecting confidentiality, potentially penalising disclosure of any ‘non-public’ detail on a pending investigation or criminal trial. Instead, as the jurisprudence of the European Court of Human Rights demonstrates, it is only permissible to restrict disclosure insofar as it can hamper a key element of the justice process in a significant way, such as impartiality of the judges or the presumption of innocence.
Pressing social need
While we acknowledge the government’s efforts to address the negative impact on journalism and access to information through the introduction of exceptions, we believe these measures are insufficient to prevent a significant chilling effect on the fundamental rights of freedom of expression and access to information. Despite the Amendments excluding punishment for journalistic work and disclosure aimed at protecting victims of criminal offenses, the term ‘journalism’ risks to be interpreted narrowly and exclude the work of freelancers, bloggers, human rights activists and others who perform a journalistic function.
We share the concerns voiced by the Croatian Association of Journalists, who have flagged that the implementation of the amendments would impede journalists’ ability to gather information on criminal investigations. This could further lead to a decrease in media reports and subsequently diminish public access to pertinent information about criminal trials and pending investigations.
Furthermore, we are concerned that the new offense will discourage officials and other participants of the justice process from divulging information to journalists or directly to the public. The fear of prosecution will hamper the readiness of potential whistleblowers to uncover violations of human rights, corruption and abuses of authority.
Separately, as currently construed, the public interest exception is contingent upon the threshold of ‘predominant’ public interest, which opens it to further abuse by the authorities.
Proportionality of the sanctions
In our view, the Amendments suggest sanctions that are manifestly disproportionate. The reliance on criminal law to regulate the disclosure of information is problematic in of itself. There exist viable alternatives that could safeguard the integrity of the justice process without resorting to criminal sanctions. Furthermore, imprisonment as the applicable sanction is grossly disproportionate and will certainly discourage various stakeholders from criminal justice field from engaging with journalists or reporting potential violations and abuses within the judiciary.
ARTICLE 19 urges Croatian decision-makers to repeal Article 307a in its entirety. The Amendments pose significant threats to freedom of expression and must be urgently reconsidered.
