Politika - Human Rights and Legal Order
Information or documents directed towards serious violations of fundamental human rights cannot be regarded as a state or official secret.
The process of adjustment of Serbian legal order to the EU standards is heavily burdened with the influence of a “concept” which radically diminishes the essence of the process and treats it as something which, almost exclusively, happens in the normative sphere, whereby neglecting the fact that the proof of the process is in its effects in reality. Prompt adoption of a huge number of laws and international documents is not permissible as it often does not have the wanted, but only minimal effects, or the actual effectiveness takes a long time. Over four and a half years ago a total edition of a book was confiscated, its authour suspected of having committed a criminal act of disclosing a military secret and detained. The book was in fact a collection of documents from various sessions of the former military leadership of our country, which, of course, labelled top secret, and obviously called “a military secret”. The content of the published documents indicated that the military was not only involved in the activities that would be expected but also in the activities that were actually serious infringements of human rights and, therefore, serious violations of human rights.In four and a half years, criminal proceedings have not moved far from square one. The author is now free, but officially still charged with a crime, and the whole book edition still being confiscated.
An interesting parallel can be drawn between the above and another case, known worldwide, the case of Cathrine Gun. An employee of General Communications, a firme that used to provide services for the British Government, when faced with the dilemma of having a clear conscience and the obligation of keeping a business secret chose the former and shook the world public. Ms Gun leaked a top-secret memo to a British newspaper, revealing the foul plan of the British and American Governments to listen in the diplomatic representatives of their close alies in order to “prepare” the conditions for adopting a UN Security Council resolution on the military intervention in Iraq. Despite the shake-up and embarrassment that nearly brought the adoption of the said resolution in question, the event did not have any criminal or legal consequences. Katherine Gun was accused of disclosing a state secret, which stormy reactions of the public, who thought that the government had no right to regard as “secret” its unacceptable activities, nor persecute those who disclose them. The epilogue? The prosecutor gave up criminal charges.
Our public opinion, as we all know, is not exactly like European. It is therefore even more important what is happening with the changes in legal order, i.e. the effects of those changes.
Meanwhile, we have adopted the Criminal Code and ratified the European Convention on Human Rights and we rightfully expect substantial effects of these documents in our reality. This is why the situation of the book Military Secrets and its author is relevant both for the assessment of those effects and as an illustration of the relationship between the law and reality.
Criminal proceedings against the author of the book for disclosing a military secret are underway. The fact that the new Criminal Code confirms that the state and official secrest cannot be the information or the documents directed towards serious violations of human rights and cover-ups of criminal activities is irrelevant for the time being.
Despite the four-year “temporary” confiscation of the entire book edition, the information it contains is available to the public. Browse the Internet and you will be able to find the book on several websites. The circumstances were similar ten years ago when the European Court of Human Rights, in the dispute Bluf (magazine) vs. Holland concerning the ban on publishing information gave a statement which is of fundamental significance even today. The Court's stance was that once privileged information became public it was no longer privileged and there were no bases for the restriction of their publication. Can anyone dispute that the adoption of the European Convention necessarily means the adoption of the authority of the European Court of Human Rights, its decisions and stands?
These stances, and primarily, of course, Article 10 of the European Convention, prescribe strong and comprehensive guarantees of freedom of expression. This means that everyone has the right to freedom of expression and receiving and disseminating information, without the interference of public authorities. The exeption to the rule is that the interference (the conditions, restrictions, bans and penalties) is allowed, but only if three preconditions have been simultaneously and cumulatively met. The first condition is that the possibility of interference - the ban, the restriction or the penalty - is prescribed by the law. The second one is that the aim of such interference is to protect legitimate values, prescribed by the Convention. And the third condition is that such interference is necessary from a point of view of a democratic society.
The third condition is the hardest one to understand in our country.The ongoing problem of being able to recognise when, from the point of view of a democratic society, confidentiality is necessary, might be explained and justified by the absence of democratic tradion. However, there is no excuse for not being ready to recognize when, from the same point of view, confidentiality is not permissible.
Information Commissioner
Rodoljub Sabic
