New Draft Laws: Does the Government Want High Standards or Is It Preparing the Ground for the Limitation of Freedom of Expression?

What has the government planned for us?

Draft law No.1 (racist and xenophobe speech)

On June 15^th, 2016, the government has approved a draft law which brings modifications in the Penal Code and in the Contravention Code, in order to fight, mainly, against racist and xenophobe speech (http://www.gov.md/sites/default/files/document/attachments/intr04_79.pdf). Because we are used to the surprises  the government periodically make us with their drafts - which often use the pretext of meeting the international standards, but actually hide traps à la the Trojan Horse (try to recall the story about the recent law, called the “Big Brother” ), this draft law was also viewed suspiciously and anxiously. And there’s a reason for this – lately, draft laws that try to limit the freedom of expression are made very often and are easily adopted, while those who bring certain guarantees, such as the new draft law of the Audiovisual Code, which journalists have been waiting for a long time, remain suspended.

I was asked if, given the liberties guaranteed by the Law concerning the freedom of expression, this draft law contradicts the provisions of the law. By reading it, I understood that, sometimes, things are just as they pretend to be (with other words, they are just as it was justified in the draft law’s Informative Note). In fact, this is normal, but, considering the context, I was a bit astonished. No, I wasn’t astonished by the government’s new hits below the belt, but by the fact that there was a new draft law.  

The draft law approved by the government on June 15th comes with a few completions to the Penal Code and Contravention Code: 1) in the Penal Code, the definition of “racist and xenophobe material” will be introduced (Article 134¹⁴ „Racist and xenophobe material means any written material, image or other form of ideas that support, encourage or instigate to hatred, discrimination or violence against one or more persons, based on their race, color, ascendency or national, ethnical or religious origin”); 2) an article about the punishment for the propaganda of genocide or other infractions against humanity is added (Article 135²); 3) the sanctions for the threatening concerning the murder or severe bodily injuries, which were based on the appurtenance to a certain race, color, ascendency, nationality and ethnical origin, or religion, are increased (completion of art. 155 p. (2); 4) the sanction for Deliberate actions, done with the purpose to instigate to hatred, to differentiate or divide a nation, ethnicity, race or religion is increased (Article 346); and 5) the Contravention Code is completed with a new article - 69¹, called  Offense based on a racist or xenophobe motivation, which introduces  sanctions for  „Insulting, in public, but also through an informational system, a person or a number of persons who identify themselves as members of a race, color, ascendency or national, ethnical or religious origin.

Draft law nr. 2 (crimes based on prejudice/hatred)

On June 22^nd, 2016, the government has approved another draft law, with the same standardized title “concerning the modification and completion of some legislative acts”, which also refers only to the modification of the Penal Code and the Contravention Code, on aspects which concern the fight against crimes based on prejudice, disdain and hatred. (http://gov.md/sites/default/files/document/attachments/intr09_75.pdf).

It is true that the differences between the two drafts are substantial: the second one includes, in fact, the first one (the authors are, probably, not in touch with the situation) and modifies substantially the legislation, focusing on the aspect of prejudice, disdain and hatred, as if it were a determining element in a crime or a contravention. Unlike the first draft law, which has a concrete and limited aim – to harmonize the legislation with the provisions of the Protocol additional to the European Council Convention concerning the informational criminality, which refers to the incrimination of racist an xenophobe actions that were done through informational systems-, the second one is mainly based on the international standards concerning the crimes based on hatred (hate crimes), but with no certain obligation to adopt especially this provisions.   For the elaboration of this draft law, in October, 2014, a team of experts from a large range of institutions was formed.

Conclusions

Although they don’t dictate some drastic changes to the current legislative provisions concerning the freedom of speech, these draft laws emphasize once again on the fact that the freedom of expression implies responsibilities, that it cannot be used with the purpose to damage, to instigate to hatred, discrimination and violence. The draft laws correspond to international standards that fight against crimes based on prejudice and on hatred, and on racist and xenophobe speech. At the same time, nobody cancels the other standards of the freedom of expression: the fact that the freedom of expression cannot be limited, unless it is absolutely necessary in a democratic society and if there exists a proportionality between the adopted measures and the main goal. Therefore, normally, no expression, which is valuable for the public through its informative or analytical methods or its ideas, should be able to be sanctioned. Let’s hope this is the way it will be, not only theoretically, in the virtue of the standards dictated by the jurisprudence of the European Court for Human Rights.    

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This article is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The content are the responsibility of author and do not necessarily reflect the views of USAID or the United States Government.