Law is not just a cheap backdrop

Danas - Regarding a comment of a Belgrade District Attorney

ic entitled “Rodoljub Sabic: Legal Incorrectness” was published. The text was based on the resolution of the Information Commissioner on ordering the District Court in Belgrade to provide NUNS with the information about the stage in which the proceedings regarding the death of the journalist Ms Radoslava Dade Vujasinovic was. In the text, among other things, Mr Milan Bozovic, Belgrade District Attorney, was also quoted. Considering my current function, I cannot help but react to some of his comments.

In the procedure of exercising the right to access to information, the Information Commissioner' Office is a secondary authority in relation to the Prosecutor's Office. Such a fact, in an ordered society, excludes public debate, so I would rather refrain from it as well. However, considering that the District Attorney did comment on the right to free access to information in a way that can only have negative effect on the application of the law that I am responsible for, I do have a word or two to say.

Firstly, it is beyond my comprehenstion that the District Attorney would say that the fact that the request of NUNS was rejected without a court decision “might have been” an oversight. There is only one legal way for an authority to reduce access to information and it is by a decision, with the instruction on legal remedy. Thinking that not passing a decision “might have been” just an oversight is the same as saying that a detention without a court decision or a conviction for a criminal act without prior indictment “might” be an oversight.

The reference to the provisions of Articles 170 of the Criminal Proceedings Act, which prescribes access to information only to the persons who have a “justified interest”, is also unfounded. Article 4 of the Free Access to Information Act contains a premise of a justified interest, and the person seeking information is not obliged to prove it. Provisions of other laws, such as the ones of the Criminal Proceedings Act, as lex specialis, are weaker in comparison to the said provision of the Free Access to Information Act.

To claim that “the Fee Access to Information of Public Interest Act applies to all information and the Criminal Proceedings Act to the information pertaining to the criminal case” implies that, in the concrete case, the Criminal Proceedings Act is a lex specialis. By that logic, a lex specialis, in relation to the Free Access to Information Act, would be any law which prescribes a procedure, whether civil, administrative, tax, customs, statistical, or any other procedure. The Free Access to Information Act would remain just a cheap “democratic” backdrop, because it would not provide access to a single piece of information about the work of the authorities.

There is no doubt that in all these matters the Free Access to Information Act is a lex specialis. This is not only my point of view; it is absolutely confirmed in the practices of countries that passed such laws before we did as well as in the relevant international documents.

Finally, it is only fair that I should agree with the District Attorney on at least one thing. He is right in indicating that “there is the information that is not for publishing… because if it were, the traces could be destroyed.” Of course they can. And the Fee Access to Information Act prescribes that access to information can be limited if it would threaten, obstruct or harm the discovery of the perpetrator of a criminal act. It is only unclear why the Prosecutor's Office would have mentioned this now, not before, not even in the letter to NUNS, or in the statement to the Commissioner. Not to mention if 12 years were long enough to detect and keep the traces. And not to mention the possibility and the obligation pertaining to Article 12 of the Free Access to Information Act that such information should be singled out and that access should be provided to the rest.

Only in his statement to “Danas” did the District Attorney for the first time mention the official secret, which might be a basis for the limitation of the access to information. I say might be, because a mark of secrecy is not in itself enough to limit the access to the information it contains. According to Article 9 Point 5 of the said Act, this is noly justified if disclosing the information may cause serious legal or other consequences on the interests protected by the law, which take priority to the interest of the access to information. This means that, in this case, first the Prosecutor, then the Commissioner, and finally, possibly the Supreme Court, are obliged to determine whether there are real, rather than formal, reasons to limit the access to information.

To conclude, this issue does not only have a legal but also a cultural, civilisation, democratic and other aspects. From any of those aspects, and twelve years after the tragic death of Dada Vujasinovi, I absolutely refuse to accept the answer to the question of our public about what the authorities have done about it that you do not belong to the group of persons prescribed by Article 170 of the Criminal Proceedings Act”

Written by the Information Commissioner