A Difficult Path to Freedom
BiH, Federation:BiH, Muslim-Croat Federation:
By Emir Habul (AIM Sarajevo)
The principles expressed in international human rights documents have been built into Bosnia-Herzegovina's legislation. These principles are supposed to create media legislation and the practice of free journalism. A specialized US media organization, as quoted by the Sarajevo-based Media On-line, has classified the news media in Bosnia-Herzegovina as "moderately free." Since material on this issue abounds, this article will only tackle regulations and practice involving the press in the Muslim-Croat Federation. Regulations pertaining to broadcasters is presented in the article on Republika Srpska.
The Law on Free Access to Information
Every citizen, regardless of whether he is a journalist or not, may freely approach the federation premier and ask him how much he paid his American lawyers to deny allegations of corruption involving senior officials of the party in power. This, until recently virtually heretical inquiry, has been facilitated by the Parliament of Bosnia-Herzegovina, which on Oct. 29, 2000, passed a bill on free access to information. Thus Bosnia and Herzegovina became the first country of the former Yugoslavia to legally regulate the issue of who is entitled to be have access to information, who is obliged to provide information, and what is exempt from these rules.
The law stipulates that every person, and not only citizens of Bosnia and Herzegovina, has the right to access information in the possession of the government and other public bodies. The latter, as stipulated by the law, include all legislative, executive and judicial bodies and all agencies and bodies formed by them or involved in carrying out public services. This is to say that they include utility service companies, hospitals and other institutions formed by the public authorities. The law does not specifically mention NGOs operating in Bosnia-Herzegovina. According to the Office of the High Representative (OHR), which proposed the law, NGOs are also obliged to secure sources of funding, data on their staff and specification of funds used for humanitarian projects, because they also belong to the public sector.
The law lists three categories of information that are exempt from this rule. The first pertains to operation of public bodies and involves cases where the publication of information could cause "significant damage" to "legitimate goals" of foreign policy, defense and security, and public security, monetary policy, curbing and discovering acts of crime, etc.). The second category pertains to protection of commercially sensitive information of private companies or third parties. The third category pertains to protection of the privacy of another person. Information from these three categories, however, is not generally exempt, but a decision on their exemption is made depending on the results of a so-called test, in which public interests in every individual case are separately examined.
What does "examination of public interest" actually mean? A public body is obliged by law to assess whether the publication of any particular information will be publicly useful or damaging. If it is concluded that the publication of this information will serve the general interest, the public body in question must make it accessible. If the public body determines that the requested information must be exempt from publication, it has to notify the person who requested the information of its decision and quote its legal and other reasons for exemption, and advise him of his right to appeal. The appeal should be filed either with the head of the public body, or a court, and assistance from the ombudsmen may also be requested. The deadline for making any information accessible is 15 days. The public body must respond within that deadline to any request. In special cases the deadline may be extended and the person who requested information must be advised of the extension. The proposers of the law were of the opinion that the law should not prescribe penalties because the matter was regulated by other laws (information laws, criminal law, etc.).
This law is primarily meant for the public. It is not a privilege of journalists, but of all citizens. According to it, a person has the right to see his police record. So far, however, the law has not been tested in practice. Neither the media nor individuals have yet exercised the rights the law guarantees to them. Many problems are expected in the process of the law's implementation, because local officials are not accustomed to be accountable to the public. An additional question is how this law will relate to other special laws, for instance, laws on defense, army, archives, official secrets, etc. it should be well assumed that public bodies will attempt to hide behind the law on official or military secrets, for instance. The law on free access to information has yet to resolve this matter.
Protection of a Source of information – Freedom and Practice
A journalist of Dani magazine, Dz. Karup, was given a suspended two-month jail sentence two years ago because she did not want to reveal in court her source of claims that a respected minister saw as slander. In October, 2000, reporters of the Sarajevo-based Oslobodjenje newspaper A. Kuci and E. Krehic were given a suspended sentence. Two years ago they published a report on the illegal transfer of the first groups of Kurds via a Sarajevo-based travel agency to Western Europe. The journalists published a price list and the main connection, but they protected their source in court. Although trafficking in people meanwhile became a massive problem both for the local government and the international community, the court failed to accept this fact. Worst of all, the judge resorted to a repealed law on slander. This became a major judicial disgrace. The chairman of the canton court suspended the judge and acquitted the journalists.
Now that journalists no longer have to fear prison, the major issue is constitutional and legal protection of their sources, both on paper and in practice. There are no information laws at the level of the Federation. Information laws have so far been adopted by six cantons, whereas two cantons are only preparing to work this out. Differences between existing laws are irrelevant because all of them were modelled after Croatian or Slovenian regulations. All of them guarantee the freedom of expression. Most of them (except the Zenica-Doboj Canton) prohibit censorship. All stress the freedom of the media and that editorial policies should be based on professional ethical standards. The right of the media to have equal access to information of public interest is also guaranteed.
All laws envisage sanctions for those government institutions which fail to pass regulations securing the transparency of their operations, and four of six cantonal information laws prescribe sanctions for authorized persons who refuse to provide information of public interest to the news media (such provisions are omitted from laws existing in Sarajevo and the Zenica-Doboj cantons). All canton laws, furthermore, stipulate cases in which state and public organs can deny access to information. These pertain to documents designated as official, state or military secrets. Only in Sarajevo canton is the law somewhat more specific. Article 23 stipulates that this means information "the publication of which could affect state security and defense, or would jeopardize international relations, law enforcement,public security, privacy and commercial secrets."
The restrictions of the freedom of information stipulated by canton laws aim, generally speaking, to achieve the following goals: protect privacy, prohibit the inciting of violence, ethnic and religious hatred, public exhibition of pornographic material, gathering of information in an illegal manner and limit advertising in radio and TV broadcasts. All canton laws, except in Zenica-Doboj canton, guarantee the right of journalists to protect the confidentiality of their sources.
In cantons in which Croats are in majority, this right has been expanded to include editors, printing shops, authors of books and articles that are not by journalists.
Compared to the pre-war period, canton laws simplify procedures for founding media outlets, but they have still retained some provisions threatening or potentially threatening the freedom of the press. This is a provision requiring that all outlets be registered with executive bodies. According to the ombudsmen, this registration enables "supervision of legality" and the possibility of sanctioning omissions of the names of an outlet's founders or editors. Fines are high and could reach DM10,000. The ombudsmen propose that these provisions be repealed, claiming that court registration should suffice.
Defamation regulations
A decision of the High Representative of June 30, 1999, made it impossible for a person to be jailed for defamation, as stipulated by the Bosnia-Herzegovina Penal Code. By this decision, the High Representative saved some dozen journalists from prison. Only in Sarajevo in 1997 and 1998, 56 trials were held in relation to these offenses. The repealing of jail sentences was a great contribution to expanding the freedom of the media and boosting investigative journalism. Sentencing in civil suits, however, has not yet been resolved. Recently a bill proposed by the government (the Draft Law on Compensation for Defamation and Slander) stipulating fines of up to DM10,000 for journalists and ranging from DM20,000 to DM100,000 for publishers was rejected. The bill provoked strong reactions by the news media and journalist associations and was withdrawn to be amended. The federation ombudsmen proposed that the fine be one convertible mark.
According to civil law, a civil suit can be initiate in cases when someone's honor and reputation are damaged, but plaintiffs as a rule prefer criminal prosecution. In 1999 only two cases were registered of private individuals launching civil suits against media organizations and journalists without pressing criminal charges. They were awarded DM20,000 and close to DM10,000 in damages, from the Vecernje Novine newspaper, and from Croatian Radio Orasje and the station's editor in chief, respectively.
Attempts at Self-Regulation: The Press Council
A major breakthrough in ongoing efforts to democratize and introduce self-regulation in the media sector in Bosnia and Herzegovina was partly made in 1998, and especially in 1999 and 2000. An Independent Commission for the Media published on Aug. 1, 1998, a code for radio and TV programs, which was amended and expanded in the following two years several times. Later, six media outlets from both entities signed on April 29, 2000, an agreement on forming a joint Press Council for the whole of Bosnia-Herzegovina. The Independent Commission for the Media compiled and published on Feb. 2, 2000, a Code of Media Rules in the Election Process.
The Code of Radio and TV Programs, and the Press Code, define rules and standards regulating the content of broadcasts and articles and promote the highest professional and ethical standards, in accordance with the IFJ's Declaration of Principles on the Conduct of Journalists. Article 5.2 of the Code stipulates that "this Code supersedes all other valid laws and regulations in the media sector in Bosnia and Herzegovina, which are not in line with the Code."
Since the Independent Commission for the Media – in accordance with a decision of the High Representative of July 11, 1998 – was fully in charge of issuing licenses and regulating professional norms for TV and radio programs, a void appeared in the self-regulation of the print media following the adoption of the Press Code. Because of this, the Press Council was formed as a body representing both the press and the public.
The council was former on Sept. 22, 2000. It is composed of six journalists and six representatives of the public from both entities. At its helm is Lord Waycome, who also chairs the British Press Council. The council's primary task is to resolve disputes between the media and the public. The council cannot punish or suspend journalists, nor can it punish, close, or revoke licenses issued to media outlets. The only sanction it has at its disposal is to have its views published in a publication that is party to any concrete dispute. The council was expected to start operating in February, 2001.