Croatia: above public opinion

In Croatia, journalists and citizens have a hard time accessing information which should be of public domain

(Originally published by H-Alter , media partner in the ECPMF project)

How does the "right to know" work in Croatia? Exactly three years ago we asked for information on a number of cases involving the Croatian Football Federation (HNS) without any result. And exactly two years ago we asked if we could attend, as journalists, the meeting of the Cultural Councils, but these continue to be held behind closed doors. It took two and a half years before attempts succeeded to make public some of the contracts for the exploitation of hydrocarbons in the Adriatic sea.

These and other similar cases demonstrate that the Croatian elite in engaged in a tireless effort to maintain their circle of interests out of the public eye.

Case number one

Last January 15^th marked three years since the journalists from H-Alter filed their first request to the executives of the HNS with reference to the Access to Public Information bill. In particular, we asked to see the contract between the HNS and Agrokor, a company owned by the Croatian tycoon Ivica Todorić.

Based on this contract, Agrokor became the main sponsor of the Football Federation on the eve of the last World Championship. We also requested access to the sponsorship contracts stipulated between the HNS and other Croatian companies, to information on funds allocated by the state, to financial reports and to the minutes of the meetings of the board of administration.
Last three years have been particularly intense for the Croatian Football Federation: serious cases of corruption have emerged involving the FIFA, the umbrella organization to which the HNS is part. In the same period the HNS has been busy implementing its own moves, including those object of our interest, and it now risks losing the political support of the Croatian Democratic Union (HDZ).

We are now entering the fourth year in which the HNS keeps refusing to supply us with the information requested, notwithstanding the fact that these were not judged to be unfounded or senseless by the competent bodies. On the contrary, the Croatian Commissioner for Information of Public Interest , Anamarija Musa, believes that the Football Federation should be considered a public body, and as such, it is obliged to be transparent in conformity with the law on Access to Public Information. Since the HNS has stubbornly ignored her repeated requests to grant us the access to certain information, the Commissioner has decided to make a complaint against the Football Federation and its president, Davor Šuker.
The Zagreb Municipal Court ruled in favor of the Football Federation and its president, after which, in September 2015, the Appeal Court confirmed the acquittal for the individual case involving Šuker. The case against the HNS was instead deferred to the Court of First Instance. Since then nothing has happened to open a crack in the “information bunker” around the Croatian Football Federation.

Case number two

On January 10^th, two years had passed since H-Alter asked the Information Commissioner to exert the power given by the law in order to arrange for the public to participate in the activities of the Cultural Councils active in the Ministry of Culture. According to Croatian law on access to information, public organisations are required to inform the public about the schedule and agenda of their meetings. Transparency should be guarantee regarding their activities, and the public should be entitled to assist to their meetings.

The Cultural Councils active at the national level and most of the local Councils have always tried to avoid the requirement for transparency which is established in the bill on Access to public information as well as in the rules of the Cultural Councils, according to which "the sessions of the Council are public".

Moreover, the elaboration and adoption of important decisions in the field of cultural policies – which should involve the Councils since 2004, remains surrounded by secrecy. This process is beset with suspicion of preferential treatment, scarred by blatant conflict of interest, various cases of dissatisfaction (real or imagined) and not very transparent relationships between board members and the relevant minister in charge.

On this matter, a statement released in 2014 by the Information Commissioner clarifies that "as soon as the Ministry of Culture defines the work of the Council for Culture, this information must be published on the web so that journalists can ask for accreditation to follow the work of the Councils, thus guaranteeing its public character." At the same time in another statement addressed to the Ministry of Culture, the Commissioner Musa tried to explain to her superiors that they are "obliged (...) to guarantee transparency of the activity of their organisations as described in the law on access to public information.”

For its part the Ministry of Culture has a different idea of administrative transparency (the idea of public participation in the activities of its advisory bodies), having several times written to Commissioner Musa to explain its position. Which is in synthesis: the Councils for Culture are "independent bodies whose meetings are organised by their own members independently of the Ministry of Culture which, except for administrative support, can in no way influence their activities." Therefore, in other words, according to the Ministry of Culture, "the law on the access to public information does not apply to the Cultural Councils."

This reply from the Ministry did not satisfy Commissioner Musa, who, already in 2015 initiated the vigilance procedure on the application of the law on access to public information on the part of the Ministry of Culture. A procedure which is still ongoing.

Strengthening the transparency of the Councils for Culture was one of the targets set in the Action Plan of the Open Government Partnership, approved by the centre-left, coalition government (SDP/HNS) for the period 2014-2016. The objective was to create a mechanism aimed at preventing conflict of interest within the Councils. The participation of the public at the Council meetings appears as an essential precondition for reaching a similar objective.

Indicators to monitor the improvement in this direction would include the publication of the minutes of the Councils' meetings and the application of the mechanism to manage the conflict of interest.

An independent report drawn up at the beginning of 2016 within the framework of the Open Government Partnership indicates that, in the field of institutional transparency, Croatia attained only "partial" progress, which is more or less equivalent to "sufficient".

In a statement to the author of the report, publicist Boris Postnikov, then representative of the Ministry of Culture, cunningly defended the obstructionism of the access to the activity of the Cultural Councils claiming that "opening these meetings to the public would not automatically mean greater transparency, but it would have forced those breaking the rules to greater secrecy." As if it wouldn't be right to make their work more difficult.

Until now, the minutes of the Cultural Councils meetings are still not public and journalists are still not permitted to assist to their sessions. Moreover, the recommendations from the Open Government Partnership continue to be ignored, the composition of the Council is still determined by ideological and political factors while the results of the public contests in the field of culture originate surprise and concern.

Institutional weaknesses

How do these dynamics impact on the opening of the decision making process to public participation?

First, it shows that the Croatian elites (football, cultural, economic, political and academic etc.) are fighting furiously so that their area of material and political interests stay out of the public eye.

Second, it points to the facts that as the system is so slow, it facilitates the elite’s success in this fight and we mustn't forget that the system was created by this very elite.

Third, it suggests that the office run by the Information Commissioner, even though Anamaija Musa and her team do their work responsibly and professionally, does not have sufficient means to have greater success.

The case of the Croatian Football Federation described above illustrates the usual problems facing the Commissioner Musa. The sentence of the Court of Appeal clarifies that the criminal case against Davor Šuker could not end with a conviction, and this was not because it was unsubstantiated or badly formulated from a legal point of view, but because the Commissioner for public information does not have an official messenger at her disposal to deliver a notice advising the former number 9 of the Real Madrid that he was about to be charged, as required by law. "And an employee of the Croatian Post cannot assume the position of municipal messenger as described in Art.148, page 4..." (!!!).

Fourth, the excessive length of these cases is a clear proof that the system granting access to information is not devised to respond to the needs of journalists. Namely, the need to have access to specific information, including documents which are potentially compromising for those who drafted and signed them, before they disappear into oblivion.

Fifth, it demonstrates that the whole system to guarantee the right to access information is still far from reaching that degree of proactivity repeatedly requested by the Commissioner for public information: "The effective use of the right to access information, as well as the reuse of public information is made possible first of all by the publication of information which in the XXI century is in a format which is easily readable and accessible on the web pages of the public organisations at all levels. Secondly, those interested can request access to specific information by sending the relevant request.”

The last report on access to information presented by the Commissioner to the Croatian parliament shows that, even though the capacity of her team has increased since previous years, it is still too low to ensure the full application of the law on the access to public information. "Considering the number of cases effectively solved (526) over the total claims received in 2015 (624), it is clear that the office has increased its effectiveness with regards the overall number of cases solved, but because of the conditions of existing work it has not been possible to resolve all the recourse cases, especially because the employees working on the cases also do other work in the office".

According to Anamarija Musa, "The capacity of the Information Commissioner's office could be increased especially in the area of criminal cases, the reuse of public information, monitoring the application of relative legislation, campaign for awareness of public opinion first of all with the recruitment of at least four employees in the space of two years, but also improving the working conditions including the availability of adequate working space."

Reading Commissioner Musa's report, the general impression is that transparency and openness of government organisations are improving, although they are not satisfactory yet. Particularly significant are the weaknesses in the work of local and regional authorities, of the organisations with public power, as well as firms whose majority capital is held by the state.
As Anamarija Musa explains, at all levels and in all segments of the public administration there have been many inconsistencies in the treatment of requests from the public, especially with regards to notification of expiry and the way of deciding about the requests.

An especially alarming figure emerged in 2015 shows that, for every 10 decisions made according to the law, more that 17 were not consistent with the law, a worsening with respect to 2014 when the ratio was 10 to 12. Commissioner Musa finds particularly worrying the fact that requests for information from the public are repeatedly ignored; in fact, two thirds of the claims received by her office are filed for this reason.

However the most critical aspect of the implementation of the law on access to public information is, according to Commissioner Musa, the scarce application of the procedure for public consultation in the drafting of legislative acts, a deficiency mainly found at local level as well as within certain institutions and in the work of public legal entities.

As explained in the Commissioner's report, "Citizens have the right to participate in the steps taken in the approval of the measures and documents which have an impact on their rights and interests. The exercise of these rights must be enabled by public authorities, being an inherent part of their work, as well as a fundamental value to be respected at all institutional levels for the public interest.” The report also points out that "sometimes the transparency of the work of public administration is satisfactory, while at others it is so limited that not even local authorities have access to information they need to make decisions and this is mainly because of unacceptable political interference in the normal functioning of the institution."

Fight for transparency

Among the most important victories in the fight for transparency obtained in 2016 by the Commissioner for public information, by the journalists and civil society associations there is the publication of a contract on seismological surveys in the Croatian sea, drawn up between the Croatian Ministry of Economy and the company Spectrum Geo Ltd.

In the last few years this affair raised attention and concern among environmentalist associations and among the population on the coastal regions. Actually, the request for access to this document was sent to the relevant ministry already in September 2013. It has taken two and a half years for the whole process of obtaining the information requested to be completed.

Already in November 2015 Commissioner Musa issued a statement saying that public opinion has the right to access the documents requested. This resulted in a complaint from the competent ministry to the administrative high court, which recognised the credibility of the Commissioner's request and ordered that the contracts in question be published. The then minister of the Economy, Ivan Vrdoljak, defended the secrecy of the contents of the contracts declaring that the freedom of business and market are guaranteed by the Constitution and would thus have precedence over democracy, public interest and the right of access to information.

"Freedom and fundamental rights of the individual and of the citizen, guaranteed by the Constitution, are in principle unlimited. Every limitation to this freedom and right must be specified by the law and in this case it was done on the basis of art. 19 of the law protecting professional secret.

State authorities are entitled to use all the economic diplomacy at their disposal to stimulate the development and strengthen economic growth, on the basis of the constitutional obligation of the state to promote economic development in the country, as would a good businessman. The principle of legal certainty and the predictability of the judicial decisions cannot be infringed to the detriment of the individual, independently of how important is the public or general interest."

Fortunately for democracy this way of reasoning did not meet with the approval of the jurisprudence, which has put into place a good procedure for similar requests for access to public information in the future. State authorities and private entrepreneurs were very clearly informed that bilateral affairs in which they are involved must be carried out in line with the public interest, as future contracts will need to be submitted to the public for viewing and judgement.