Similarities between Article 310 of the old Criminal Code and Article 433 of the new Criminal Code

Both in Article 310 of the Criminal Code and Article 433 of Law 1/2023 concerning defamation, there is one important similarity: legal proceedings will not proceed without a complaint from the victim.

That is:

  • Victims must actively report acts of defamation to the authorities.
  • The authorities will not follow up on defamation cases without a complaint from the victim.

The reason behind this provision:

  • Giving victims the right to determine whether they want to prosecute the perpetrator or not.
  • Prevent the misuse of defamation articles for personal gain.

Differences between Article 310 of the old Criminal Code and Article 433 of the new Criminal Code

Based on Constitutional Court Decision No. 78/PUU-XXI/2023, there is a difference between Article 310 paragraph (1) of the Criminal Code and Article 433 of Law 1/2023 concerning defamation, namely Article 433 of Law 1/2023 emphasizes that the perpetrator commits defamation verbally. This element is not regulated in Article 310 paragraph (1) of the Criminal Code. Meaning:

  1. Article 433 of Law 1/2023 expands the scope of the crime of defamation.
  2. Verbal defamation can now be punished under Article 433 of Law 1/2023.

The Constitutional Court (MK) in Constitutional Court Decision No. 78/PUU-XXI/2023 stated that Article 310 paragraph (1) of the Criminal Code concerning defamation is conditionally unconstitutional.

Meaning:

  • Article 310 paragraph (1) of the Criminal Codestill applies, butits meaning is limitedso as not to conflict with the 1945 Constitution.
  • The affirmation regarding "verbal acts" in Article 433 of Law 1/2023 can be adopted to clarify the meaning of Article 310 paragraph (1) of the Criminal Code.
  • The aim is:
    • To provide legal certainty in the application of Article 310 paragraph (1) of the Criminal Code.
    • Prevent differential treatment and discrimination.
    • Eliminate ambiguity in the application of the article.