At yesterday’s session, the House of Peoples of Bosnia and Herzegovina (BiH) adopted the Law on Freedom of Access to Information of BiH after it was also adopted in the House of Representatives. Nine delegates voted for the Law, and four were against it, writes CIN.
In the previous period, this law caused numerous controversies in both chambers of the Parliamentary Assembly of BiH, as well as in civil society. The reason for this was mainly the parts of the Law that establish exceptions to the provision of information and determine that appeals against decisions of institutions will be decided by the Appeals Council at the Council of Ministers, which is also the proponent of the Law.
The representatives of the House of Peoples who voted against it at yesterday’s session said that they did so because the delegation of the European Union (EU) in Bosnia and Herzegovina warned that the Law is not harmonized with European standards, especially in the part that refers to the Appeals Council. They expressed doubts about the transparency and independence of this body because it is under the Council of Ministers of Bosnia and Herzegovina.
“This is a law that is not in line with European standards, and it is being sold to us as if it is,” said Šefik Džaferović, representative of the Democratic Action Party.
The parliamentarians tried to solve this problem by proposing that the second-instance body that would decide on complaints should be the Ombudsman Institution in Bosnia and Herzegovina. However, the Law was adopted without this amendment.
Minister of Justice of Bosnia and Herzegovina Davor Bunoza said that the Ombudsman Institution in Bosnia and Herzegovina cannot decide on complaints because it is not in accordance with the Constitution of Bosnia and Herzegovina, the Law on Ombudsmen of Bosnia and Herzegovina and the Law on Administrative Procedure. “That institution makes recommendations that are not binding and cannot decide on the merits of appeals to the institutions of Bosnia and Herzegovina. The Appeals Council is not the best model, but it is in line with international standards. That is the only realistic and best proposal we can offer.”
Director of Transparency International in Bosnia and Herzegovina, Ivana Korajlić, believes that the Council is not independent, so it cannot be expected to act independently in cases where the institutions of the Council of Ministers are concerned, “and it is especially controversial that it is not known how the Appeals Council can act on appeals related to the decisions they make institutions that are not under the jurisdiction of the Council of Ministers, such as the court, the prosecutor’s office, the High Judicial and Prosecutorial Council and others.”
Korajlić tells the Center for Investigative Journalism (CIN) that since 2021, when the draft of this law was published, representatives of civil society have sent more than 200 comments to which the Ministry of Justice of Bosnia and Herzegovina has turned a deaf ear. In the comments, they specifically criticized the expanded list of exceptions, which is now much longer than in the existing law.
Korajlić says that it is not clear what the exemptions specifically refer to, which is why he believes that civil servants in the institutions will interpret it arbitrarily, from case to case, which could lead to abuse of the exemption mechanism.
“When you add to the fact that there is no longer an obligation to automatically carry out the public interest test in the case when exceptions are established, but the public interest test must be specifically requested, then it becomes clear that access to information will be difficult at the start.”
However, Minister Bunoza says that the exceptions were made in accordance with the EU Directive on open data: “The fact that there are more sentences does not mean that there are greater exceptions, but abuse is prevented and the Law is harmonized with international standards”.
The Minister, on the other hand, is worried about whether the institutions will be ready to proactively publish the information that the Law obliges them to do. He says that the number of requests will be reduced if the Law is respected because the information should be published in advance on the institutions’ websites.
“Experience has shown that it is very often misused. Yes, if some information is in some form on the page, that gives the institutions the right to refuse access to the information upon request, even when that information is incomplete,” says Korajlić.
Despite the shortcomings that he himself pointed out during both sessions of the House of Peoples, delegate Zlatko Miletić was one of those who voted for its adoption. He said that the Law should be adopted and later changed and made better: “One has to swallow something sometimes just to move on because, in the end, this will be for the benefit of the citizens”.
Ivana Korajlić points out that a high-quality law should have been made while it was in the procedure, because temporary solutions in Bosnia and Herzegovina often become permanent.
The Law on Freedom of Access to Information of Bosnia and Herzegovina is one of the 14 priorities from the Opinion of the European Commission on BiH’s request for EU membership and will enter into force eight days after its publication in the Official Gazette of Bosnia and Herzegovina.