Office of Public Prosecutor Instrumental in Shielding Government Institutions from Responsibility: Claims against Commissioner for Information of Public Importance

In April and May 2016, the Office of the State Public Prosecutor (SPP) lodged two claims with the Administrative Court seeking the annulment of the decisions of the Commissioner for Information of Public Importance and Personal Data Protection (Commissioner), by which the Commissioner had ordered the Ministry of Defence (MoD) to provide the Humanitarian Law Center (HLC) information of public importance concerning the professional engagement of two officers of the Yugoslav Army (VJ) during the Kosovo conflict. The HLC considers that the SPP has abused its legal powers in order to shield individuals and institutions from responsibility for past crimes to the detriment of the public’s right to know, and that these claims constitute in effect an open attack on the office of the Commissioner.

With a view to researching the war crimes committed during the Kosovo conflict, and as part of its advocacy efforts directed towards establishing accountability for these crimes and  institutional reform, the HLC in 2014 filed a request for access to information of public importance with the MoD, seeking information concerning the professional engagement of two officers of the VJ Priština Corps (Mladen Ćirković and Goran Jevtović), namely: as to when they were appointed to positions in the VJ Priština Corps, until when did they serve in those positions, which ranks did they hold at the time of crimes, and are they are still active members of the Army of Serbia and, if so, what ranks do they hold? The MoD refused to provide the information requested on grounds of confidentiality. In its refusal notice, the MoD stated that the disclosure of the information requested would cause harm to “the operational and functional readiness of the Army to carry out its tasks and missions laid down by law and the Constitution of the Republic of Serbia, and thus damage the national defence interests of the Republic of Serbia, which override the interests of access to information of public importance.”

Upon examining the HLC’s complaint against the above MoD decision, the Commissioner ordered the MoD to disclose the information sought, emphasizing that invoking data secrecy and the unspecified anticipation of harmful effects its disclosure could cause were not sufficient grounds for denying access to information, and that a public authority must prove the likelihood of the occurrence of such harmful effects, by carrying out the so-called harm test and public interest test. In acting upon the MoD’s initiative, contrary to the relevant domestic and international law, the SPP in its two claims has in fact challenged this legal standard.

Article 9 of the Law on Free Access to Information of Public Importance provides that the public right to know may be subject to limitations where information or a document in question is “classified, by regulations or an official document based on the law, as top secret, an official secret, a trade secret or other secret, i.e. if such a document is accessible only to a specific group of persons and its disclosure could seriously legally or otherwise prejudice the interests that are protected by the law and override the interests in access to information“. According to this article, two conditions must be cumulatively fulfilled for the restriction to be imposed, namely: (1) that the information is classified as secret under the law, and (2) that its disclosure could cause harm. It is precisely these two conditions that the Commissioner referred to in his decision, requiring the MoD to demonstrate that they had been fulfilled. However, the SPP departs from the Law when stating in its claims that “it is not necessary to specifically prove that the disclosure of the information requested would harm the interests of the state and that these interest prevail over the right of the public to know, as this is something that is self-evident.”

The cited position of the SPP, besides being contrary to the Law on Free Access to Information on Public Importance, which is the most relevant law in this case, with the Commissioner being the most competent person to interpret and apply it, is also contrary not only to the Data Secrecy Law and the case-law of the Administrative Court, but also to the relevant international standards and the EU acquis.

Namely, the Data Secrecy Law also provides for the harm test and the public interest test, stipulating that data classified as secret can include “any data of interest for the Republic of Serbia, whose disclosure to an unauthorised person would result in damage, if the need to protect the interest of the Republic of Serbia prevails over the interest to have free access to information of public importance” [emphasis added]. This law also requires that „in classifying data, an authorised person assess the possible damage to the interest of the Republic of Serbia” (Article 10, para. 3), and that a decision on determining the level of classification be based on this assessment (Article 11, para. 3). In the case discussed here, both the MoD and the SPP have failed to supply the decision on determining the level of classification (which must contain a justification and an assessment of the possible damage that could result from disclosure).

The European Convention on Human Rights, Article 10, stipulates that freedom to receive and impart information and ideas (as a part of the right to freedom of expression) may be subject to restrictions in exceptional cases, but only if such restrictions (1) are prescribed by a law, which must be formulated with precision; (2) are necessary in a democratic society; and (3) are in the interests of national security, or for the protection of the rights of others, etc. Additionally, according to the case-law of the European Court of Human Rights, such a restriction must be proportionate to a legitimate aim pursued by the state and must be justified by “sufficient and relevant reasons”. Neither the SPP nor the MoD have demonstrated the existence of any legitimate aim, nor have they provided sufficient and relevant reasons for classifying as top secret data created 17 years ago and relating to an army which has ceased to exist.  They have also failed to explain how the disclosure of the data sought could cause harm to the interest of the state.

In the case of the Administrative Court upholding the SPP’s claim and the illegitimate standard it proposes, arbitrariness and restriction of the human rights of Serbian citizens would be the consequences, as it would allow government institutions to arbitrarily, and with unlimited discretion, declare all compromising documents top secret and thus shield themselves from any responsibility. The HLC notes with regret that the SPP has become instrumental in undermining the efforts to clarify the circumstances surrounding the massive war crimes committed during the wars of the 1990s. Also, the HLC finds it absurd that the SPP finds a basis for filing its claims in the very provison of the Law on Administrative Disputes (Article 11, para. 3) which obliges it to act in the public interest, and that the SPP applies the cited provision in a manner which is completely contrary to the public interest, by restricting the public’s right to know.

In April 2016, the HLC released its report, “Access to documents related to crimes against international law in the possession of Serbian institutions: State Secret Prevails over Right to the Truth”, which discusses the long-standing and systematic practice of the Serbian public authorities of withholding the archives relating to crimes committed in the wars of the 1990s. In its resolutions on the 2014 and 2015 Progress Reports for Serbia, the European Parliament stressed the need to open the official archives in order to establish the truth about the tragic events of the past. The Commissioner for Human Rights of the Council of Europe, in his Report on the Visit to Serbia in 2015, underlined the importance of opening military and police archives in the search for missing persons.

As required by the Law on Administrative Disputes, the HLC, as an interested party, submitted to the Administrative Court its answers to the SPP’s claims. The HLC believes that the SPP will lodge more such claims soon, as the Commissioner has issued several identical decisions against the MoD over the past few years.

The English translation of the SPP’s claim relating to the case of Goran Jeftovic can be found here.