According to Article 19 Document, If Anyone Appeals to the Court in Strasbourg,’Lex AP’ Will Fall

‘Lex AP’, or its controversial Article 307 of the Criminal Code, would not pass the three-part test of the European Court of Human Rights that examines the necessity of restricting freedom of expression. This is stated in the analysis by Article 19, an international organization promoting freedom of expression, published by the Croatian Journalists’ Association (HND).

Article 19, which is also part of the esteemed consortium Media Freedom Rapid Response (MFRR), calls on Croatian authorities to fully withdraw the controversial Article 307 of the Criminal Code (‘Lex AP’) as it poses a significant threat to freedom of expression and must be urgently reconsidered. This article, besides being contrary to international standards of freedom of expression, represents a disproportionate interference in freedom of speech and also limits the ability of journalists and other actors to publish information of exceptional public importance.

Below, HND transmits the analysis (the entire document is 16 pages) stating that Article 19 asserted, contrary to the ruling party’s argument that it is a legal solution existing in most EU member states, that Croatia should be guided by standards developed in the practice of the European Court of Human Rights when limiting the disclosure of information about criminal investigations to protect the right to a fair trial and the impartiality of the judiciary. This court applies a three-part test in its assessment of the justification or unjustification of government interference in someone’s freedom of expression in every case, without exception, examining the necessity of restricting freedom of speech and whether there is a pressing social need for such restriction and the proportionality of sanctions. According to Article 19’s analysis, the controversial Article 307 fails on all three parts.

Necessity of Restriction

Article 19 notes that the Criminal Code already protects the confidentiality and integrity of judicial proceedings. Breaching the confidentiality of court proceedings and disclosing ‘professional secrets’ is already punishable. Therefore, they believe there is no need to introduce another criminal offense as it will inevitably be counterproductive, i.e., limit access to information.

The proposed amendments to the Criminal Code also overlook the possibility that disclosed information may already be available in the public domain, thus eliminating the need for a ban on their disclosure. As demonstrated by the case law of the European Court of Human Rights, it is permissible to restrict disclosure only to the extent that it can significantly disrupt a key element of the judicial process, such as the impartiality of judges or the presumption of innocence.

Despite the provision excluding the punishment of journalists and the disclosure of information aimed at protecting victims of criminal offenses, there is a danger that the concept of journalism will be interpreted narrowly, excluding the work of freelancers, bloggers, human rights activists, and others performing journalistic functions.

Article 19 shares the concerns of the Croatian Journalists’ Association (HND) regarding the amendments to the Criminal Code that potentially hinder journalists in gathering information about criminal investigations. This could potentially lead to a reduction in the number of media reports and decrease public access to relevant information about ongoing criminal processes and investigations. The fear of criminal prosecution will deter potential whistleblowers from revealing cases of human rights violations, corruption, and abuse of power, believes Article 19. Also, as currently interpreted, the public interest exception depends on the threshold of ‘overriding’ public interest, which opens further possibilities for abuse of power.

Proportionality of Sanctions

Resorting to criminal law to regulate the disclosure of information is problematic in itself, believes Article 19. There are sustainable alternatives that could protect the integrity of the judicial process without resorting to criminal sanctions. Furthermore, imprisonment as an applicable sanction is extremely disproportionate and will certainly discourage various stakeholders from the criminal justice system from engaging with journalists or reporting potential violations and abuses in the judicial system.

Finally, let us recall that HND organized protests against the ‘law of dangerous intentions’, i.e., amendments to the Criminal Code, on January 31 of this year in Zagreb (at Markov trg) and Split, according to which unauthorized disclosure of content from investigative or evidentiary actions in the investigative phase becomes a criminal offense. At that time, HND president Hrvoje Zovko harshly assessed that the proposed provisions of the Criminal Code are ‘an act of state aggression against the public interest, journalists, and the journalistic profession’, calling on Prime Minister Plenković to ‘be a statesman and withdraw them from parliamentary procedure’. Journalists were supported at the gathering by civic activists, association leaders, actors, and opposition members of parliament, and they were addressed by the vice-presidents of the HND Executive Board Drago Pilsel and Chiara Bilić, as well as the president of the European Federation of Journalists Maja Sever, who is also the president of the Croatian Journalists’ Union, and journalist and columnist Branko Mijić.