almanac on security sector oversight in the Western Balkans

Bosnia and Herzegovina
reveals deficiencies in legal provisions. For example, public institutions are not
obliged to respond to a requester with a decision, removing the possibility for
the requester to formally file an appeal. Also, there are no sanction provisions
for those institutions which fail to respond to a request. The Institution of the
Ombudsmen, mandated by the Act to monitor the overall implementation of
legal provisions, has no authority to pass decisions that would be binding for
public authorities. Annual reporting from the Ombudsmen reveal that a large
number of public institutions completely failed to uphold the provisions of the
Act.
The criminal code of Bosnia and Herzegovina recognizes the criminal offence
of “unauthorized processing of personal data.” The Law on Protection of
Personal Data, enacted in 2001 and updated in 2006, regulates the processing
and transfer of data and applies to all authorities. The level of actual compliance
remains low, in particular with regard to law enforcement agencies. An
independent personal data protection agency, mandated by the law, was set
up to monitor legal enforcement, oversee the process of complaints and report
regularly to the Parliamentary Assembly BiH. However, limited progress has
been made by this agency, as it is understaffed and does not operate fully
independent of political influence.
The Law on Protection of Classified Data stipulates provisions for classification
and categorization of data which can fall under a high or low degree of classification,
depending on the government institution. It is interesting to note
that the degree of classification can vary from institution to institution, due to
instances where government officials independently award differing levels of
classification to different information. As such, this law has a negative impact
on overall transparency and accountability. The Ministry of Security BiH has
been mandated to monitor implementation of this law. Its legal implementation
requires further modalities and, at the present moment, amendments are
being debated.
In terms of values for the three legal provisions outlined above, there has not
been a significant shift of perception or raised awareness amongst the general
population. All three legal provisions have been promoted in the media and
through different NGO projects but apprehensions are still present. The administrative
mechanisms in place for monitoring and oversight of implementation
are still not independent or completely functional and are understaffed.
Finally, in terms of identifying the most responsible amongst the security institutions
in terms of freedom of access to information, the state-level agencies
such as Ministry of Defence, Ministry of Security, State Investigation and Protection
Agency and Border Police are among those institutions who have been
forthcoming with information. On the other hand, the Intelligence-Security
Agency of BiH has lagged behind.
Recommendations:
• Initiate changes to provisions of legislation passed subsequent to the Freedom
of Access to Information Act, to remove obstacles which restrict the
rights and obligations set out under it. This refers in particular to the Law on
Tax Administration and Criminal Procedure Code in the Federation of BiH.
• Through the media and parliament, advocate to the government to fulfil its
obligations to implement the FoAI by appointing information officers, developing
an indexed register and guide, and report information as set out under
the legal provisions.
Grades
279
Almanac on Security Sector Oversight in the Western Balkans