Standard 1.2.2. Freedom of Expression

Legislation

Freedom of expression is a constitutional right based on the Article 40 which guarantees freedom of expression to all, and can be restricted only if necessary to prevent violence or racial, ethnic or religious hate. No particular primary legislation applies to freedom of expression but a number of laws contain provisions related to it such as: Civil Law Against Defamation, Law on Protection of Informants, Law on Access to Public Documents, Law on Protection of Journalistic Sources, Law on Protection of Personal Data etc. The law on protection of informants and that on Access to Public Documents have gone through the amendment process, during the past two years. The former has been abolished by the new law no.06/L-085 on Protection of Whistleblowers which has replaced the term informant with whistleblower, has expanded the protection from employers to interns, volunteers, trainees and to every other person that provides help of any kind to the whistleblower. The law recognizes three types of whistleblowing; internal, external and public, while no civil, criminal and disciplinary proceedings can be issued against the whistleblower. In addition, the law requests that public institutions with more than 15 employees, and private ones with more than 30 employees to assign a responsible staff on whistleblowing. Despite the primary legislation being in favor of freedom of speech, the government is procrastinating the process of drafting the secondary legislation that would define procedures of dealing with a whistleblower.

The latter has detailed further procedures for obtaining access to public documents, such as proactively updating and publishing lists of documents an institution has in disposal. The legal framework in place does not contain any provisions that would require permission to speak, deliver presentations/lectures in public nor the requirement that publications of organizations must be preapproved. Local media experts have evaluated it as enabling enough nevertheless, its implementation is slow mainly caused by lack of supporting mechanisms.

0 – 20 Fully disabling environment20 – 40 Disabling environment
40 – 60 Partially enabling environment60 – 80 Enabling environment
80 – 100 Fully enabling environment

During 2019 have been noted two cases of public institutions initiating drafting of policies harmful towards freedom of expression. On the first occasion Kosovo Prosecutorial Council adopted a Regulation on public communication that prohibits its officials to communicate with media and journalists regarding “special developments” unless the head prosecutor is notified in advance. The Regulation does not specify what constitutes a “special development”. On the second occasion the Independent Media Commission by the end of 2019, initiated drafting of a policy that would prohibit reporting from court rulings of public officials until final ruling. At the moment that this policy went into public consultation media and civil society submitted their comments to address problematic provisions. As prescribed above all cases of limitations of freedom of speech are clearly prescribed and in line with international law and standards Last years have been characterized by an increasing number of attacks on journalists, while this is said to be related to the lack of institutional protection. Responsible institutions are not doing enough on solving cases of assaults against the journalists by procrastinating investigations, third parties impact on the investigator’s work, low rates of solved cases and short sentences. On this regard, the Basic Court of Prishtina has just recently appointed a coordinator on the attempt to increase the rate of solved cases of assaults against journalists. Such coordinators have also been appointed by the State Prosecutor office and by the Basic Prosecution office. Effectiveness of such recent appointments remain to be evaluated. The penal code has been amended in 2019, while libel is still considered as a misdemeanor rather than part of it. In general, Civil Law against Defamation and Insult does not contain overly protective provisions toward state officials.

Practice

Survey data show that CSOs in Kosovo in general enjoy freedom of expression. More than 80% of respondents claimed to have not been pressured when using critical speech, nor then when they targeted state authorities. Usage of online communication tools without being hacked or blocked was reported by 93% of CSOs, whereas 90% of CSOs stated to have not been threatened because of their opposing opinions. There have been no reported cases of CSOs being sanctioned or imprisoned because of critical reporting. Representatives of the Association of Journalists of Kosovo stated to have not noticed individuals nor CSO representatives to have succumbed to self – censorship.

Nevertheless, when seen through the lens of the media and journalists’ freedom of expression’s exercise it is not at the right level. One journalist was denied entry into Kosovo Assembly premises on the grounds of failing to prove its accreditation. Nevertheless, no media was accredited at the time, due to delays in procedures by Kosovo Assembly. In a separated case, the director of the Air Navigation Service Agency urged its staff to stop communicating with a journalist. He stated that he did not like the journalist’s investigative reporting. Association of Journalists of Kosovo reports that in 2018, 16 investigative journalists were threatened or persecuted, from both state and non-state actors. Municipality officials, business persons and a few cases of attacks by citizens make the list. The Freedom’s House Report 2020 ranks Kosovo as partly free, whereas Reporters without borders 2019 Report shows an increase in ranking for Kosovo, compared to last year from 75 to 78.