THE STATE AND THE PUBLIC

AIM Zagreb, July 29, 1996

Experts for media of the Council of Europe have recently visited Zagreb in order to assess the level of compliance of the new Croatian law on mass media with European standards. Representatives of the authorities expected the arrival of the expert group with considerable optimism, since much time and effort were invested in making this law "more European". In this sense even certain important comments of the Croatian Journalists' Society were benevolently adopted, and in this the possibility was avoided, which had been mentioned a month or two ago, to have along with the Government draft law an alternative offered to the Assembly, which would have been elaborated for the Croatian Journalists's Society by a few respectable lawyers inclined to the media.

Reasons for cooperativeness of the Government are quite transparent: the intention was to remove at least one of the obstacles which is holding Croatia away from the entrance to the Council of Europe. Free media, due to a few excess situations in the past few months, were mentioned in all recommendations (or requirements) as an inevitable condition which Croatia is obliged to meet before it knocks again at the door of the distrustful Council of Europe in October.

It was expected that the law on information would fare quite well in this "combing" by the experts; it was even expected that the European experts would reward the effort to make the law as liberal as possible. It happened, however, that the experts did not analyse only this law which explicitly deals with media, but studied also all other legal texts which even indirectly refer to the problem of media, and even those which are linked to the assembly procedure. Because, certain especially restrictive provisions exist in other legal texts, and they are precisely elaborated in the recent so-called mini reform of criminal code and prescribed by the quite new Draft Law on Protection of Secrecy of Data.

The European experts do not have a very favourable opinion about the already much commented on article 77 of the Criminal Law which prescribes that criminal proceedings will be initiated in case of slander of the top five state officials by the state attorney after obtaining only an agreement of "the victim of slander and insults", because it deviates from European standards, since this practice "overemphasizes protection of the reputation of politicians at the expense of freedom of speech". They are also very critical about the way secrecy of data is defined, believing that this delicate task belongs to the court, and not to the authorities.

It is a matter of a resolution proposed in the mentioned Law on Protection of Secrecy of Data. Since even the legislator has certain dilemmas as the text is still in the stage of a rough draft, doubt is felt concerning the decision who should be entrusted with the delicate competence of verification of secrecy of data. That is why the chapter devoted to the committee which is to check secrecy of data is still provisional. As one possibility, the legislator suggests foundation of a separate committee for checking secrecy consisting of seven members, which would be nominated by the Chamber of Representatives of the Assembly of the Republic of Croatia, and the other possibility is broadening of the competence of the existing Committee for Protection of Freedom of public information. In both cases, this agency would be entrusted with the role to check, at request of representatives of the media, whether a specific fact is marked as state, military or official secret and whether its publication results in violation of the Law on Secrecy of Data. After verification, the committee would "issue an information, directives and advices".

In the variant with nomination of a special committee for vefification of secrecy, it is conceived as an advisory body of the Assembly, and out of its seven members, three would be representatives of the media (press, radio and television). The very composition of the committee clearly shows that representatives of the media, even if completely unison in opinion, would be a priori in the minority in relation to "the others". Since all seven are to be nominated by the Chamber of Representatives of the Assembly, it is not hard to assume that the composition of the committee would be decisively influenced by the party in power, taking into account predomination of deputies of the Croat Democratic Community (HDZ) in the Assembly.

In the second case, the delicate role would be given to the Committee for Freedom of public information, an agency which has already been established and which acts pursuant the former Law on Public Information, which is prescribed by the new one as well, but in a somewhat changed composition. Instead of the previous seven the committee would have nine members, and they would be persons nominated by the Croatian Journalists' Society, trade unions of journalists, Society of Croatian Writers, Matica hrvatska (cultural association), Croatian Academy of Sciences and Arts, University, Chamber of Lawyers and Union of Publishers, and the president of the committee would be nominated by the Chamber of Representatives of the Assembly, chosen among the deputies, public, scientific or professional prominent figures.

In view of the public interest, there is no doubt that the latter possibility (the one which is listed as the second in the draft law) is more democratic and that it promises less biased evaluation than the predominantly state-controlled committee for verification of secrecy. Especially since the law on secrecy of data includes a very comprehensive (and far-reaching) systematization of secrets, ranging from state and military secrets, to business and professional ones, and since it prescribes a very wide range of information, documents and data which can bear the mark of top secret, secret or confidetial. Into this net with very small holes, it is possible to fit in almost any even slightly delicate fact which the state wishes for some reason to remain inaccessible to the public.

The already mentioned "mini reform" of criminal code prescribes responsibility for publication of a secret (nowadays in a very broad sense) both of the person who reveals a secret and the person who makes it public, and the punishment may be imprisonment from one to three years. It is, therefore, understandable that adoption of the law on protection of secrecy of data is expected with great curiosity and considerable anxiety, most probably at the first autumn assembly sessions. Until then, no proceedings can be initiated against a journalist for revealing any secret, but the time of comparative tranquility is obviously almost over.

No matter how many times representatives of the authorities swore to the experts of the Council of Europe about their devotion to democracy, and how hard they tried to "polish" the law on public information, it is not difficult to notice a strange coincidence that in parallel with "liberalization" of this law, runs a powerfully repressive line in other laws. It is also evident in prompt implementation of the provisions which caused criticism of the public, and even in appeals to the Constitutional Court which still has not reached a definite decision concerning the controversial paragraphs of Article 77 of the Criminal Law. The fact that at the same time careful reexamination (reelection) of judges has taken place is not at all comforting, nor is the fact that many of those who were ranked at the very top of the list of the most respectable and most competent by the organization of judges in an anonymous poll three years ago, have left the proffesion.

Many of these things could not have passed unnoticed by the experts of the Council of Europe who have been analysing Croatian laws in the past few days, because all their comments go down the line of liberation of the media from the firm and possessive hold of the state. Logically, one of the most powerful instruments of disciplining the media is refusal to give data, and the best way to do it is very broad stretching of the concept of secret.

It is true that restrictions are pimarily directed towards firm control of those who have data at their disposal, because in order to reveal a secret it is necessary for the one who knows something to be ready to reveal it. By a careful record keeping it is possible to narrow down the circle of "suspects", and very quickly find out and shut the channels through which undesirable data "leak" into the public.

It is, however, most important for the public that such an elaborated structure does not become too diligent and that it does not proclaim that not only those data are secrets which really endanger state security or vital intersts, but any fact not to somebody's taste, which the public is highly interested to make known and published, but the influential circles have no intention of assisting it in any way to achieve it.

MERI STAJDUHAR