Proposals for the criminal sanction of “Defamation of the constitutional organs and state symbols” (Articles 134/C and 134/D) have been taken from the Criminal Code of FR of Germany, a member state of the European Union and the Council of Europe, known for its highest standards of respecting human rights. Moreover, other European Union countries such as France, Italy, Poland, Greece, Lithuania, Portugal, and Slovenia, among others, have similar criminal provisions that punish defamation of constitutional organs and state symbols.  By 2018, Germany will remove the provision on defamation of the foreign head of state, but not the defamation of the President of Federal Republic of Germany, which will remain a criminal provision.
 
Freedom of speech, including criticism of state institutions, is a fundamental right guaranteed by Constitution, and an inalienable basis for a democratic constitutional order. On the other hand, respect of the constitutional organs and state symbols require that criticism be grounded and not serve for humiliating and insulting purposes, which would not contribute to a constructive discourse. The Ministry of Justice is of the opinion that public debate as such can be carried out without insults and defamations that are contrary to our culture and tradition.

The Ministry of Justice has offered several proposals for the Criminal Code in order to initiate public debate, which would take place in accordance with the government’s Regulation of Rules and Procedure on drafting legislation. All the proposals on amending and supplementing the Criminal Code will become public and the possibility for public debate will be provided. However, given the recent media debates, and prior to the initiation of public consultations on the Criminal Code it its entirety, the Ministry of Justice publicly invites all the prosecutorial and judicial institutions, the bar association, the civil society, the media and academic institutions to provide their opinions, proposals or reviews regarding the following Articles:
 
Article 134/C
Defamation of the state and its symbols
1.      Whosoever publicly, in a meeting or through the dissemination of written materials:
1.1.       insults or maliciously expresses contempt of the Republic of Kosovo or its constitutional order; or
1.2.     insults the colours, flag, coat of arms or the anthem of the Republic of Kosovo, shall be liable to imprisonment not exceeding three (3) years or a fine.
2.      Whosoever removes, destroys, damages, renders unusable or defaces, or otherwise insults by mischief a publicly displayed flag of the Republic of Kosovo, or a national emblem installed by a public authority of the Republic of Kosovo, shall be liable to imprisonment not exceeding three (3) years or a fine.
3.     Whosoever by the act intentionally supports efforts against the continued existence of the Republic of Kosovo, or against its constitutional principles, shall be liable to imprisonment not exceeding five (5) years or a fine.
4.      The attempt to commit a criminal offense set forth in this Article shall be punishable.

Article 134/D
Defamation of the constitutional organs
1.      Whosoever publicly, in a meeting or through the dissemination of written materials defames a constitutional organ, the President, the Assembly, the Government, the Constitutional Court of the Republic of Kosovo, or one of their members in this capacity in a manner detrimental to the respect for the state and thereby intentionally supports efforts against the continued existence of the Republic of Kosovo, or against its constitutional principles, shall be liable to imprisonment from three (3) months to five (5) years.
2.      The criminal offence provided for in paragraph 1 of this Article may only be prosecuted upon the authorisation of the constitutional organ or member affected.
 
 
For the sake of transparency, the said Articles as well as the received opinions, proposals, and reviews will be published on the official website of the Ministry of Justice.
 If, after exhaustive debates, still dominates the stand that it is reasonable for constitutional organs and state symbols to be defamed and insulted and not be subject to criminal sanctions, then the Ministry of Justice will act accordingly.
 
The Ministry of Justice welcomes any opinion, proposal, and review on the proposed Articles in writing via zkp.md@rks-gov.net by 15 May 2017.