COMMENT20 JUN 12 / 11:53:04

Scrapping Article 38 Won’t Help Kosovo Media’s Cause

Days before parliament is due to revise two controversial articles in the new law code, the argument about whether one of the articles should be amended - or abolished – goes on.

By Flutura Kusari

 

BIRN

 Pristina

The debate among journalists remains heated and ongoing in Kosovo about what should be done with two controversial amendments to the Kosovo Criminal Code.

The debate took off in earnest on April 20, when parliament adopted the new Criminal Code with two articles – one making journalists liable for criminal offences not specified in the criminal code (article 37), and another obliging journalists to reveal their sources in court if the information is deemed necessary to prevent threats to people’s life or physical integrity (article 38).

Following adoption of the code, there was an outcry from the media community, which included a media boycott of Kosovo’s state institutions for a day on World Press Freedom Day.

After this, on May 8, Atifete Jahjaga, the President of Kosovo, used her discretion to return the law to parliament for reconsideration by not signing it.

She reminded parliament that the articles in question appeared not in line with the European standards to which Kosovo, under its constitution, adheres.

The problem with Article 37 is its vagueness. This is because it makes editors-in-chief, publishing houses and journalists criminally responsible for “criminal offences committed through the media” - without specifying what a criminal offence committed through the media might consist of.

Article 38, on the other hand, obliges journalists to disclose all their sources to the court, “if the information is necessary to prevent an attack that constitutes an imminent threat to life or physical integrity”.

In the meantime, many international media organisations such as the European Broadcasting Union, EBU, and Freedom House, have reacted in support, asking Kosovo’s parliament to take a fresh look at the Criminal Code.

Now, only days before this revision is to take place, debate continues about what should happen with these two articles.

Part of the journalistic community, led by Association of Professional Journalists of Kosovo, AGPK, wants both of the offending articles removed completely.

But, both the EBU and Freedom House advise that while Article 37 needs to be completely removed, Article 38 need only be modified, not removed entirely.

The AGPK’s argument, meanwhile, is that, knowing the inexperience of Kosovo’s courts and the amount of political pressure that Kosovo courts are routinely exposed to, judges will use article 38 in whatever form it is approved to interpret as they wish; thus they will force journalists to reveal their sources even when the existence of an imminent threat to someone’s life or physical integrity is not justified.

However, if this article is removed rather than modified, journalists could still be summoned by Kosovo’s courts like every other citizen - and information would be required from them, as no law will prohibit the court from doing so.

Furthermore, journalists, like all other citizens, could be imprisoned or fined by law if they refuse to give testimony regarding their sources when summoned to do so.

In the current criminal code, journalists are exempted from an obligation to testify when it comes to the disclosure of their sources.

I would argue that, with a slight modification, article 38 could serve to protect journalists from the legal obligation to disclose their sources if demanded by a court.

But if article 38 is completely removed, journalists will no longer be exempted from a duty to testify.

Either way, sources must be protected - either via the criminal code or through a special law on the protection of sources, which must enter into force at the same time as the new criminal code. 

Flutura Kusari is a post-graduate of commercial law focusing in media law at Queen Mary University of London and works as a legal advisor in BIRN Kosovo.

http://www.balkaninsight.com/en/article/scrapping-article-38-won-t-help-kosovo-media-s-cause