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30 December 2013
Analysis

Struggle for Public Justice and Truth

Denis Dzidic BIRN BiH Sarajevo
With several thousand signatures, as well as with other ways of supporting the campaign “Stop Censorship on War Crimes”, Balkan Investigative Reporting Network (BIRN) succeeded in encouraging the authorities to admit that anonymisation cannot be applied to serious crimes, including war crimes.
BIRN launched the campaign “Stop Censorship on War Crimes” in the summer of this year, with the aim of winning public support for changing decisions and regulations that prevented the obtaining of complete information from the judicial institutions in Bosnia and Herzegovina regarding war crimes.

In March 2012, the Court of Bosnia and Herzegovina issued a decision by which the names and surnames were replaced by initials in order to protect personal data contained in official documents. In addition to initials, the Court of Bosnia and Herzegovina decided to issue ten-minute long audio or video recordings of the trial. The Prosecution of Bosnia and Herzegovina decided that the charges are not public documents, and other courts and prosecutors’ offices in Bosnia and Herzegovina began to apply similar practices.

The campaign “Stop Censorship on War Crimes” was supported by more than 2,800 people, and nearly 500 people called the phone number of the campaign. News of the campaign featured in over 30 internet portals in Bosnia and Herzegovina, six television stations and four daily newspapers.

To raise awareness of this problem, debates in Brcko, Prijedor, Zivinice and Mostar were organised where associations of victims expressed their disapproval regarding the anonymisation practice which effectively prevented access to the full names and surnames of individuals who were convicted as war criminals by second instance verdicts.

Break the Silence
Bakira Hasecic, president of the Association “Women – Victims of War” pointed out that for victims, as well as for the entire society, it is essential that full information about the perpetrators are published.

“It is important for future generations to leave established facts about the crimes. We must speak openly about war crimes. If the victim wishes to testify publicly, why should the Court limit it and why can the public not hear it. The silence must be broken and victims should be encouraged to come forward. It is also important that the indictments are published, because when earlier indictments were published, a large number of victims came forward and testified”, said Hasecic.

During the campaign, BIRN published a legal analysis, showing that the anonymisation practice violates the public’s right to information about trials for the most serious crimes, as well as the freedom of expression.

Lawyers Asim Jusic and Vasvija Vidovic added that anonymisation violated Article 10 of European Convention on Human Rights, which guarantees the freedom of expression.

“Application of the Rulebook is contrary to the purpose of trials for war crimes. The idea of the establishment of tribunals for war crimes is to provide legal remedy for victims by granting them full access to information about the death and suffering of their loved ones, in order to restore their dignity and to make their voices heard during the process, and thus to shed light on the past. Application of the Rulebook of the Court of Bosnia and Herzegovina in its current form is contrary to such intent and is a clear example of the self-inflicted defeat”, said Jusic.

Vidovic put forward a similar view, saying that the media should have the possibility to inform about the activities of judicial authorities. “The right of the public to receive information on matters of public interest is particularly important and it involves the right of the media to report freely and comment on the functioning of the criminal justice system”, she said.

Successes of the Campaign

After the campaign, as part of the “Structured Dialogue onJudicial reform”, the European Commission issued a conclusion that absolute anonymisation should be given up, and that balance between the right to protection of personal data and the free access to information should be found.

Shortly after, the Court of Bosnia and Herzegovina announced that they would work on amendments to the Rulebook, as the “anonymisation led to a justified public reaction and would harm the reputation of the court”.

Mira Smajlovic, Judge of the state Court said that practice of removing of all verdicts was the result of “uncritical acceptance”of the act of the Agency for the Protection of Personal Data of Bosnia and Herzegovina, and admitted that this practice ignored the public interest.

“We harmed themselves and we made an own goal. We caused great damage to ourselves and gave away the confidence of public in the Court of Bosnia and Herzegovina,” said Smajlovic.

As judge Smajlovic said, because of this, the Court of Bosnia and Herzegovina has prepared amendments to the Rulebook on anonymisation, by which it will order the publication on the website of all verdicts in cases of war crimes and other cases for which the existence of public interest is established.

The introduction of restrictive measures of anonymisation occurred after the Agency for the Protection of Personal Data - acting on one complaint - requested the Court of Bosnia and Herzegovina to remove one of its verdicts from the website.

Nedzmija Kukricar, representative of the state Agency for the Protection of Personal Data argues that the practice of comprehensive anonymisation is the result of a too broad interpretation of the Agency’s proposal.

“We are against automatic data processing - however, the Law on Protection of Personal Data permits the publishing if it is in the public interest. In the most severe criminal acts, we see that we must have names and surnames. It is important for future generations and for reconciliation. However, the testing of public interest should be carried out in the background," said Kukricar.

However, Meddzida Kreso, President of the Court of Bosnia and Herzegovina told BIRN - Justice Report that the institution which she leads advocated from the beginning that proceedings for war crimes should be treated as cases of public interest, but that the Agency insisted on the opposite stance.

“This interpretation of the law is exposed to a number of criticisms, both of the general and professional public, because of limiting freedom of access to information of public interest”, said Kreso.

In order to harmonise the practice of anonymisation, The High Judicial and Prosecutorial Council (VSTV) has established a working group which will create a balance between the right of access to information and the right to protection of personal data.

Judge Smajlovic, who chairs that working group, concludes that the publication of verdicts in cases of war crimes with the full names and surnames of convicted persons is crucial for the modelling of future generations.
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