Court of Bosnia and Herzegovina Silences Itself

5. June 2012.00:00
In March 2012, the State Court of Bosnia and Herzegovina promulgated a decision and a new rulebook (pravilnik) that severely restricted the public’s access to information relevant to the proceedings of the court. Indictments are already completely withheld from public view, and even within the judgments of the Court, only the initials of the names of those convicted are to be made available to the public.

Bosnian media agencies will henceforth have only very limited access to the hearings of the Court, being limited for example to obtaining short video recordings of court sessions after these recordings are subjected to extensive redactions.

All of this raises concern for the future of the judiciary in Bosnia and Herzegovina, and raises fundamental questions about the Court’s own understanding of its mission.

In devising these new policies, the State Court stated that it is merely implementing the requirements imposed by the Personal Data Protection Agency in Bosnia and Herzegovina. These requirements are, in turn, ostensibly tied to attempts to harmonise data protection and the protection of confidential data with EU standards.

However, as I can attest from my own experience of working in archives in neighbouring Croatia, the implementation of such standards is often carried out in such a way as to severely restrict the access of the public and of professional researchers to information that is normally publically available in EU member states.

In open and democratic societies, the principle of transparency ensures that citizens have access to all relevant information so that they exercise their rights and obligations to be well-informed, responsible citizens of their states.

Although all states, including democracies, do of course choose to keep sensitive political and military documentation confidential, the guiding principle of transparency in democracies dictates that the burden is on the state to justify why certain types of documentation should remain confidential.

There will, of course, be many cases where the state determines that national security interests or the privacy of individuals require that information remain protected from public view. Even in such cases, however, most democracies provide legal avenues (typically known as “freedom of information acts”) that permit citizens to seek access to confidential information if they can justify their need for this information.

The work of the criminal justice system constitutes an important element of the functioning of a modern state. Although there are many variations in the judiciaries of democratic states, the documentation and information generated by the court system is generally publically accessible with the aim of ensuring the transparency of the judicial process.

Confidentiality exception, not rule

Once the prosecutor’s office decides to raise an indictment against accused individuals, and the judge confirms the indictment, the text of the indictment is accessible to the public. There may be cases in which the sensitivity of the material contained in the indictments necessitate that these remain confidential. This could be the case if there are risks to the safety of the accused or of others identified in the indictment, if the accused are minors, or if the calculation is made that the accused will flee if he becomes aware of the existence of an indictment against him.

Such decisions should be the exception rather than the rule, and this is the case in most democratic states.

In a number of states, such as Poland, the law prohibits the publication of the full name of the accused in criminal cases and allows the media only to publish the initials of the accused. Typically, courts are more restrictive with respect to the publication of victims, particularly in criminal cases where the victims have suffered sexual violence.

By contrast, in cases in which the accused has received a fair trial and has been convicted of criminal acts, there are few good reasons to justify keeping their identities confidential.

Society as a whole has a right to know who has been convicted of criminal acts. For victims the publication of the identity of the perpetrator(s) is often an important part of the healing process, as it helps to halt the process of denial of the crime.

Yet moving beyond the narrow scope of those immediately implicated in a criminal trial – the