Freedom of expression and COVID-19 in BiH

By: Vanja Ibrahimbegović Tihak

“Media must be free to report on all aspects of the crisis. Journalists have a key role and a special responsibility for providing timely, accurate and reliable information to the public. They must be able to scrutinize the decisions of authorities in response to the pandemic. Through responsible reporting, journalists can also help prevent panic from spreading and highlight positive examples of solidarity in our societies. I have been personally impressed and encouraged by the many media reports I have seen of citizens helping each other and of carers, nurses, doctors and other ‘heroes’ on the frontline of this crisis.” These were the words of Marija Pejčinović Burić, Council of Europe Secretary General, delivered on World Press Freedom Day (Svjetski dan slobode medija), during the peak of Corona virus pandemics. She reminded the audience about the fundamental principles of freedom of expression and demanded responsibility by both, Council of Europe State Members and media professionals, outlining that they should preserve and sustain their own professional standards, as well as to cherish human rights.

Abuse of Human Rights Convention

As short reminder, we should outline here that Article 10 of the Human Rights Convention (Evropske konvencije o ljudskim pravima), defined fundamental protection standards concerning the rights to freedom of expression, guaranteed to all citizens of Bosnia and Herzegovina. And they are awarded and evolved through court practice by the European Court of Human Rights and through declarations, recommendations and guidelines issued by the Council of Europe, which again, derived from the very same applicable practice. During the past period, Guidelines on Media Reporting during the Crisis (Smjernice o medijskom izvještavanju u vrijeme krize) from 2007 have been reactivated and these are available in all three constitutional languages in Bosnia and Herzegovina.

The Guidelines clearly define that member states shall ensure and provide free access to information which is in public interest; they must not misuse crisis situation in order to, by any means applicable, limit both female and male media representatives to have free access to information (including, for instance, defamation charges); competent governing official authorities shall not discriminate, but instead they shall provide free access to information to all media representatives and they shall not limit freedom of expression in regard with Article 10.

In this context, it is important to have full comprehension and understanding of Article 10 where any limiting of freedom of expression, imposed by the governing official authorities, must be in proportion with threats to other rights or freedoms, which again is in conflict with freedom of expression. In simple terms, this means that should governing official authorities decide that certain information, considered as public importance, is hidden from the public (if this should occur during specific period of time and associated with the argument that it represents common good), they (governing official authorities) must be certain that the damage and danger deriving from releasing such information (at certain period of time), is greater than omitting to release the same information and share it with the public. However, it does not mean that governing official authorities may randomly pass these kinds of decisions. There is specific and well – defined criteria based upon which those decisions are estimated and evaluated (test of proportionality) since they apply to every single individual case. What is important to highlight here is the fact that freedom of expression, in accordance with the Convention is the rule and limitations, represent exceptions that should be justified.

Some decisions passed by the governing official authorities, that is, institutions of Bosnia and Herzegovina, in the context of reducing the consequences of corona virus pandemics, demonstrated either fundamental ignorance of the above mentioned principles or they displayed a complete abuse. During the period when this particular article was written down, when one would believe that the pandemics was decreasing and declining, more and more analysis seem to have been appearing in public, confirming how BiH institutions, in their attempt and enormous effort and to repress pandemics, actually violated human rights (analiza o tome kako su institucije BiH u pokušaju suzbijanja pandemije kršile ljudska prava).

For instance, it is important to remind the audience about the decision passed by the Constitutional Court of Bosnia and Herzegovina (odluke Ustavnog suda Bosne i Hercegovine), outlining that banning underage and senior citizens from leaving their homes did represent violation of human rights in the Federation of Bosnia and Herzegovina, because the conditions of proportionality had not been fully met. Namely, without taking weaker measure into consideration (for instance, partial restrictions respectively) that may have been equally efficient, and on the other hand, they would thus allow underage and senior citizens to have certain liberties, the Federal institutions instead decided to impose most strict restrictions immediately, where they completely ignored the rule of proportionality, which again clearly violated human rights.

Freedom of expression had been similarly violated. One of many cases supporting this thesis was the decision passed by the Government of the Republic of Srpska (Odluka Vlade Republike Srpske), concerning the ban on encouraging and instigating public panic and disorder on the territory of the Republic of Srpska during the state of emergency period. The decision banned “revealing, releasing, exposing, posting or sharing false news or allegations that may cause panic or severely violate public peace and order or disallow or significantly disturb or obstruct the implementation of decisions and measures imposed by the governing official authorities and organizations executing public empowerments” . From the protection of freedom of expression point of view, there is a whole line of problematic elements in this decision. For example, who would, in what way and how decide which “allegations” would result in mass public panic or obstruct the decisions and measures implemented by the governing official authorities and public bodies. This would indeed eventually leave a wide open space and area for the abuse and illegal limiting of the freedom of expression. After public reactions, including those by the BH Journalists (BH novinara), the Government of the Republic of Srpska, and a month after this controversial decision had been passed, put this decision out of force (van snage). There were similar cases including those pursuant with the Provision passed by the President of the Republic of Srpska; including also the decision passed by the Emergency Staff of the Stari Grad Municipal official authorities, again concerning the ban of revealing, releasing, exposing, posting or sharing false news.

Pressure on media

Also, there were cases where the police (policija oduzima snimke), by using force, took video recordings from accredited journalists’ team and delete them; or cases where medical institutions would openly favor particular media houses (zdravstvena ustanova  favorizira određene medije) and particular journalists, while they would, at the same time, ban others from having free access to information that concerned public health situation or cases where Cantonal Emergency Staff, apparently due to the ban of social gatherings, disallowing thus public press conference (kantonalni krizni štab pod krinkom zabrane okupljanja onemogućuje održavanje press konferencije), that should contain information about epidemics and we all witnessed this occurrence in Bosnia and Herzegovina during first two months of corona virus crisis, since these were all in contrast with the principles and standards regarding the protection of freedom of expression, that, pursuant to European Convention of Human Rights. These principles must be obeyed by the state. In case of our country, and if we should judge by the above listed cases and examples, we could only conclude that this obligation had never been obeyed by the state officials as it should have been; instead pressure imposed on media representatives had at the same time become a raw model of conduct.

Without any intention to speculate the reasons of such conduct (displayed by the institution female and male representatives), whose primary goal was the protection of rights and liberties, the purpose of this article / text was to warn the general public audience about the standards of the Council of Europe and refer to their present / current practical application, all in accordance with the Constitution and laws of Bosnia and Herzegovina.