Ministry of Defence withholding information on active-duty members of Army of Serbia indicted of war crimes

On 18 July 2016, the Commissioner for Information of Public Importance and Personal Data Protection (Commissioner) sent a request to the Government of the Republic of Serbia to ensure the execution of his decision of May 2014, which ordered the Ministry of Defence (MoD) to provide the Humanitarian Law Center (HLC) with information as to whether two officers of the Army of Serbia (VS) – Pavle Gavrilović and Rajko Kozlina – remained in active service after an indictment was raised against them for a war crime. The HLC believes that complying with the request of the Commissioner and ordering the MoD to communicate the information requested should be a priority for the Government, in order to make it clear that state authorities may not violate the public’s right to know the facts about past crimes and the role played by the state in these crimes, especially where people who are still in the public office have been involved in them.

In November 2013, the Office of the War Crimes Prosecutor (OWCP) charged Pavle Gavrilović and Rajko Kozlina, an active-duty officer and a non-commissioned officer of the VS respectively, with a war crime against a civilian population. As alleged in the indictment, Gavrilović and Kozlina, members of the Yugoslav Army’s 549^th Motorised Brigade (YA 549^th MtBr) at the time, together with several members of the Logistics Battalion, on 25 March 1999 killed at least 27 civilians, residents of  the village of Ternje/Trnje (Suva Reka municipality, Kosovo), including elderly men, women and children, one of them a four-year old boy. First instance proceedings against Gavrilović and Kozlina are underway before the War Crimes Department of the Higher Court in Belgrade.

Immediately following the indictment, the HLC requested the MoD, under the Law on Free Access to Information of Public Importance, to provide it with information as to whether the accused continued to serve as active-duty members of the VS after the indictment. The Ministry rejected the HLC’s request, stating that the information requested is protected as secret, as it constitutes personal information, and also information “relevant for the defence of the state” whose disclosure would “cause harm to the operational and functional readiness of the Army to carry out its tasks and missions as laid down by law and the Constitution of the Republic of Serbia, and therefore damage the national defence interests of the Republic of Serbia, which override the interests of access to information of public importance.”

Upon examining the complaint filed by the HLC against the above decision, the Commissioner in 2014 rejected the arguments put forward by the Ministry and ordered it to disclose the information sought. Explaining his decision, the Commissioner stated that the MoD had failed to demonstrate “what particular foreseeable harm disclosure of the information requested would cause to the operational and functional readiness of the Army”, and that it concerned the professional activities of career military personnel, not their private lives, and as such could not be protected as personal data.

Because of the MoD’s failure to comply with his decision, the Commissioner issued another three decisions between September 2015 and June 2016, imposing fines totalling RSD 200,000 upon the MoD. As the MoD failed to give effect to his decisions even after being repeatedly fined, the Commissioner has recently approached the Government of Serbia urging it to force the MoD to comply with his decisions

Such a way of handling information requests is not an isolated but a repeated ocurrence when it comes to the MoD. Namely, over the past several years, the MoD has been unlawfully obstructing access to information and documents of public importance that may assist in reconstructing events from the past and revealing the facts about past crimes and enforced disappearances.  In 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” released earlier this year, the HLC presented the long-standing and systematic practice by Serbian public authorities of keeping under wraps the archives relating to the crimes committed in the wars of the 1990s.

The HLC notes that the State Public Prosecutor (SSP) has recently tried to legitimise the unlawful conduct of the MoD. At the initiative of the MoD, in April and May 2016 the OPPRS filed two claims with the Administrative Court seeking the annulment of the decisions of the Commissioner by which he ordered the MoD to disclose the information sought by the HLC concerning the engagement of two officers of the Yugoslav Army during the Kosovo conflict. Acting contrary to the Law on Free Access to Information on Public Importance, the Data Secrecy Law and the case-law of the European Court of Human Rights and the Administrative Court itself, the SSP has asserted in its claims that the public has no right of access to information held by a public authority if such information is classified as secret.

The steps that the new Government will take with regard to the Commissioner’s request will clearly show the state’s attitude towards the public’s right to access information of public importance, and to the authority of independent human rights institutions, but also the state’s adherence to the rule of law. Further, Government’s decision on this matter will be a measure against which to assess its attitude towards its international obligations, in particular those undertaken in the framework of the accession negotiations with the European Union (EU).

The EU Human Rights Guidelines on Freedom of Expression of 2014 underline that the right to freedom of expression is a key component of democratic governance, and that in some circumstances the disclosure of information held by state entities may assist the exposure of human rights violations – viz. “Ensuring access to information can serve to promote justice and reparation, in particular after periods of grave violations of human rights.” The Guidelines also underline that freedom of expression is a priority for candidate countries, that this issue should be raised at an early stage during accession talks under Chapter 23 on the judiciary and fundamental rights, and that the EU will condemn any restriction on freedom of expression. In the Action Plan for Chapter 23, Serbia made a commitment to “improve the free access to information of public importance rules and their practical implementation.”

In their concluding observations on the 2015 reports on Serbia, the UN Committee on Enforced Disappearances and the UN Committee against Torture underlined that it is necessary to adopt regulations which will ensure that all members of security forces or public officials suspected of committing criminal offences monitored by these two committees are suspended from office.