Alaburić: I believe that the Criminal Code should not protect the honour and reputation of individuals, and that the means of legal protection provided by the civil law are completely sufficient.
Translation: Fairpress
Defamation is still a criminal offence in the 23 EU Member States, including Croatia. Within the Criminal Code there is a provision on crimes against honour and reputation which includes defamation, severe shaming and the insult. Article 148 of the Croatian Criminal Code punishes by a fine the presenting or dissemination of facts about a person which can harm his/her honour or reputation. However, the Criminal Code was mitigated in 2015 and so, only a person who consciously presents untrue facts about a person which objectively could harm that person’s honour or reputation, can be convicted for the crime of defamation. For all other situations it is stipulated that there is no criminal offence, if the information is disclosed in doing a journalistic job and if it’s in the public interest.

In recent years we have witnessed many cases where journalists who were writing about politicians or other powerful people are presented with a lawsuit for offences against honour and reputation, and the decriminalisation of defamation has been the subject of debates for years. The International bodies responsible for human rights, among which is the European Court of Human Rights, frequently criticise the criminalisation of  defamation. The International Press Institute’s (IPI) report on media freedoms in Croatia for 2016 also warns on the criminalisation of defamation, in the report, among other things, the Parliament is called upon to abolish articles 148 and 147 on insult and Article 149 on defamation.

Lawyer Vesna Alaburić said for Fairpress that despite the fact that, today, regarding the Criminal Code, one can’t say it facilitates the prosecution and punishment of journalists, she advocates for the decriminalisation of offences against honour and reputation:

I believe that the Criminal Code should not protect the honour and reputation of individuals, and that the legal means provided by civil law are completely sufficient. Therefore, I advocate for the so-called decriminalisation of this group of crimes against honour and reputation.

In order to find out the extent in which the latest amendments of the Criminal Code really affected the improvement of the protection of journalists, we tried to get hold of information about how many journalists were “subjected“ to this provision of the Criminal Code, i.e. how many of them were prosecuted in 2015 for the crime of harming honour and reputation. However, we found out that none of the relevant institutions (Ministry of Justice, the Croatian Bureau of Statistics and the Municipal Civil Court in Zagreb) keep records on such committed criminal acts by type of work of the persons who have committed those crimes. Moreover, the data from the mentioned institutions about the general number of crimes against honour and reputation do not match.

According to the data from the Croatian Bureau of Statistics for 2015 there was a total of 15 charges against honour and reputation, and the same amount was rejected. Out of that, two were related to insult, two to severe shaming, and 11 to defamation. Also, the Bureau of Statistics records the number of accused people sorted by crimes, so, in 2015 there were 311 people accused of crimes against honour and reputation: 107 for insult, 18 for severe shaming, and 186 for defamation. In the same year, for the aforementioned crimes, 83 people were convicted, while 100 of them were acquitted. In 2015, 31 people

were convicted for insult, two people for severe shaming two people and for defamation 50 of them.

On the other hand, according to the data that was delivered to us by the Ministry of Justice, that number is significantly higher. In 2015 a total of 511 cases in the category of offences against honour and reputation there were received, 397 of them were resolved, of which 262 were final. These data are related to all cases that are in court regarding aforementioned crimes. The Ministry stated that they are not able to filter from this journalists or any other profession of the injured parties.

On our query sent to the Municipal Criminal Court in Zagreb about the number of suits filed against journalists for crimes of shaming and defamation in 2015 and the number of court rulings in the for those crimes in 2015, we received the response that “before the Municipal Criminal Court in 2015, 149 cases by private lawsuits for the crime of severe shaming from Article 148 of the Criminal code ( “Official Gazette” No. 125/11, 144/12, 56/15 and 61/15) and the crime of defamation from the Article 149 of the Criminal code were established, and that during 2015 18 acquittals and 10 convictions were issued regarding the same crimes; not in a single one of those 10 convictions was the defendant a journalist by profession, while in the 18 acquittals, 8 of the defendants were journalists by profession.”

To the question of how many procedures in 2015 was led against journalists for the aforementioned crimes, we did not get an answer, because, as we were told, it is not possible to search the eSpis system by the work of the party, in this case the defendant.

Considering that the data on the total number of verdicts under crimes at state level are not sorted by work and that the data of various institutions dealing with records of crimes do not match, it is not easy to see how the latest amendment of the Criminal Code really helped journalists and to what extent the number of verdicts decreased compared to the previous years.

Crimes against honour and reputation (Chapter xv. CC, NN 125/11) - cases 2013-2015, Ministry of Justice

Crimes against honour and reputation (Chapter xv. CC, NN 125/11) – cases 2013-2015, Ministry of Justice

What is evident from the data (the table above) that we received from the Ministry of Justice, is that compared to 2014, the number of cases received on regarding crimes against honour and reputation in 2015 decreased, and the number of solved cases increased. However, the question is whether we can rely on this data and make some conclusions about changes for better or worse, considering the variation of data from institution to institution.

Note: The data used in this article was collected for measuring the Media Clientelism Index within the regional project Civic Response to Clientelism in Media (MEDIA CIRCLE), financed by the Instrument for Pre-Accession Assistance of the European Union (IPA) Civil Society Facility (CSF) and co-financed by the Government of the Republic of Croatia Office for Cooperation with NGOs. The project leader is the association Partnership for Social Development from
Zagreb.

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