Additional restrictions on access to information of public importance

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In Bosnia and Herzegovina (BiH), imperative legal norms without the application of sanctions for non-implementation are like a door without a handle: they only partially serve their purpose. For violating the Law on Freedom of Access to Information, for example, no responsible person has ever paid a standard fine.

This law in BiH was adopted in 2000. It would be unfair to say that its adoption was not a step forward, first of all, in increasing the transparency of the work of state institutions and bodies.

It seemed that it gave citizens, and especially journalists, an effective tool in gathering key information of public interest. Unfortunately, the practical potential of this law has been drastically reduced and it seemed that the long-announced work on the new legal text, which was adopted by the new convocation of the BiH Council of Ministers in June of this year, would eliminate the key shortcomings. Unfortunately, that didn’t happen. Before pointing out the key shortcomings of the adopted Law on freedom of access to information at the level of BiH institutions, it is worth briefly recalling the full consensus reached by non-governmental organizations, the media, professional and civic associations when it comes to problems with the existing law and its application.

First of all, it is an extremely “relaxed” attitude of the authorities towards the legal obligation to deliver the requested information to the requester within 15 days. Aladin Abdagić, editor-in-chief of the Center for Investigative Journalism (CIN), recently stated that, on average, it took them 18 months (!) to get the requested information. Do we need to explain the pointlessness of this practice from the point of view of fulfilling the goal of the law, that this waiting period is half as short?

In addition to this problem, information seekers, and especially journalists, in practice are faced with the request of the authorities to which they are addressing to provide “reasons for requesting information”. This attitude of state authorities is in complete collision with the right to receive and disseminate information, one of the catalog of fundamental human rights of all citizens. Simply, it is about the fact that not only is the applicant not obliged to answer the question “why is he looking for information” or “how will he use it”, but the state authorities do not have the right to ask these and similar questions.

One of the key problems in the application of the law so far is the practically unlimited, discretionary right of government bodies and institutions to refuse to provide the requested information due to its “confidential nature with the mark of secrecy”. Although confidentiality is in practice justified by security, commercial or other similar interests, it has turned into the ideal protection of at least corrupt contracts, brazen misuse of public resources and state functions, and even outright theft.

The most striking examples of this practice are the explanations of the decisions on the refusal to provide information by the Government of the Republika Srpska (RS): the first is related to the information in the contracted price for the construction of the Banja Luka – Prijedor highway, and the second is the legal basis for the use of airplanes and helicopters owned by the Government by the president of the RS entity, Milorad Dodik. In the first case, it is a commercial contract that is measured in hundreds of millions of marks, but the public was deprived of even the approximate value of the contracted work.

In a non-transparent procedure for the construction of the highway Banja Luka – Prijedor, the Government of the RS signed a contract with the Chinese company Shandong. However, despite the demands of the public (the media, members of the RS National Assembly, non-governmental organizations, citizens…) the key elements of the contract – the government’s obligations towards the Chinese company – have remained unknown to this day! The highest officials of the RS justified their repeated refusal to provide key information about the contract with the Chinese company with a contractual clause according to which, at the request of the Chinese partner, that information is a secret!

So, instead of protecting the public interest of the citizens who fund the project, the government hides the data allegedly to protect the private commercial interest of the Chinese company. Such an explanation, apart from insulting the intelligence and common sense of citizens, also represents a drastic violation of the Law on Freedom of Access to Information. It points to the conclusion that by hiding key information about the project, the Government is protecting the private interests of those officials who agreed on the implementation of the project with Chinese partners. The fact that not only the cost of carrying out the works, but also the contracted guarantee of the Government of RS is unknown, shows how indicative of a criminal business it is: it assumes the obligation of multi-year entity subsidization of Chinese partners in case of failure to achieve the projected number of cars using the highway; it has long been known that all objective analyzes (projections of the number of vehicles) point to the economic unprofitability of building this road. Of course, this does not mean that the highway should not be built because it is unprofitable. For such cases, there is a higher, public interest for which budget funds can be used as state aid. However, the legal system of state aid is one of the conditions for the European integration of BiH, prescribed by the Stabilization and Association Agreement. However, the Republika Srpska decided to go beyond the Law on the State Aid System, on its own, to approve the aid without the approval of the competent institutions, while hiding the contract with Chinese partners, ignoring even the court decisions after the lawsuit of Transparency International BiH, which ordered the publication of the contract.

Another illustrative example, much more noticeable to the public in Bosnia and Herzegovina, is the obvious misuse of the RS Government’s airplanes and helicopters by the president of this entity, Milorad Dodik. Except in cases where he uses these expensive means of transportation as the president of the RS, Dodik also uses the plane and helicopter for private and party purposes. The last such case was his arrival at a meeting of the presidents of the political parties that make up the state government in Konjic.

The fact that he came to the meeting of party leaders, as the president of the Alliance of Independent Social Democrats (SNSD), by helicopter remained in the shadow of Dodik’s primitive, vulgar cursing of the Srebrenica genocide. All previous attempts by numerous media outlets to obtain information on the number and costs of Dodik’s use of the official plane and helicopter have remained unsuccessful.

It was expected that numerous inadequate solutions in the existing Law on Freedom of Access to Information, of which only a small part is listed, could be corrected by the new law. However, there is no reason for optimism.

In the draft law adopted by the government, a very broad list of possible exceptions to the government’s obligation to provide information was again left. The “public interest test” as a key mechanism for making a decision on the justification of withholding requested information is formulated as if the goal of the law proponent is to protect the government that hides information, not the rights of citizens whose money the government misuses to enrich social criminal elites.

The delegation of the European Union (EU) in Bosnia and Herzegovina has asked state officials to amend the Draft Law on Freedom of Access to Information at the Institutional Level of Bosnia and Herzegovina, which is in the parliamentary procedure. The House of Representatives of the Parliamentary Assembly of BiH will decide in the second reading today (July 24), and the House of Peoples in the first reading a day later.

For the EU, it is a controversial “solution” that appeals procedures under this law are carried out by the Appeals Council at the BiH Council of Ministers. According to them, that council “does not meet the criteria of independence and specialization of a second-level body”. Among other things, and for this reason, the head of the EU delegation in BiH, Johann Sattler, sent a letter to the Collegium of the House of Representatives and the House of Peoples, requesting that the Draft Law on Freedom of Access to Information at the level of BiH institutions be harmonized with international standards.

And if the Council of Ministers really cared about aligning its proposed law with generally accepted international standards, it could have done so very easily, using an excellent, comprehensive analysis of international practices and the possibility of its application, which was prepared by the Institution of Ombudsman for Human Rights of Bosnia and Herzegovina in 2019 in the “Special Report on Experiences in the Application of the Law on Freedom of Access to Information in Bosnia and Herzegovina”. In this report, the observed weaknesses of the existing law and its application are explained in great detail, as well as possible solutions through a comparative analysis of various practices in the countries of the European Union and the countries of the Western Balkans.

The debate on the fate of the proposal of the Council of Ministers on the new law comes in a completely absurd situation and at a moment that represents a challenge for the elementary functioning of the state of BiH. Namely, it will also be decided by the MPs who supported even so screaming unconstitutional decision in every state where there is a minimum rule of law, such as the decision of the National Assembly of the RS, according to which this entity denies and rejects the jurisdiction of the Constitutional Court of Bosnia and Herzegovina. Pretending to be normal in discussions about only one of the many laws that are under the jurisdiction of the state parliament, while at the same time the demolition of the constitutional order of BiH is at work, is the same as offering a drowning man, instead of a life belt, promises to protect the right to a healthy environment.

In these circumstances, journalists are in the most difficult situation. Necessary, official information from government bodies and institutions will continue to be almost impossible to get. At the same time, the adopted scandalous changes to the Criminal Code of the RS, according to which defamation applications from the domain of private lawsuits and civil proceedings are transferred to the jurisdiction of the prosecution and criminal proceedings, represent the heaviest possible blow and threat to their work.

If one had to choose the most useful part of this text for journalists, then it could be summarized in the following advice: despite the existing Law on Freedom of Access to Information, the practice of ignoring the obligations arising from it for state bodies and institutions, information should be persistently requested from them by referring to the law, and evidence of (unfulfilled) requests should be carefully preserved. If for no other reason, then because of the better procedural position of the accused in criminal proceedings for defamation in the Republic of Srpska, that is, the procedural position of the defendant in civil proceedings for defamation in the Federation of Bosnia and Herzegovina and Brčko District.

Source: Media Center