Requests to the government of the Republic of Serbia with regard to the elimination of shortcomings in the drafting of the Law on free access to information of public importance
The Coalition for Access to Justice hereby requests from the Government of the Republic of Serbia to remove without delay the shortcomings in its work on amending the Law on Free Access to Information of Public Importance (hereinafter referred to as: LFAIPI), by ensuring that the work on drafting of the Law will be taken over by the competent Ministry for Human Rights alongside equal participation of experts, media representatives, associations and others, in accordance with the Law on the Planning System.
Democracy and rule of law are based on the competency and transparency of the work of public authorities.
LFAIPI represents one of the foundations of the democratic order of the Republic of Serbia. The aim of this law is to regulate the manner of exercising and protecting the right of the public to be informed about the work of public authorities. This right is guaranteed under the Constitution of the Republic of Serbia.
For a decade now, LFAIPI has been considered to be among the best European laws in the field of access to information by relevant international organizations.
The work on amending LFAIPI has been burdened with numerous irregularities, i.e. shortcomings which can be classified into five groups.
First of all, the Ministry of Public Administration and Local Self-Government (hereinafter referred to: MPALSG) is not competent for amending LFAIPI. The competences of this Ministry cannot be either directly or indirectly drawn from Article 11 of the Law on Ministries. According to Article 12, and in conjunction with Article 39 of the abovementioned law, the Ministry in charge of drafting human rights regulations shall be competent for amending LFAIPI, which means the Ministry of Human and Minority Rights and Social Dialogue.
Second, the working group in MPALSG tasked with amending LFAIPI, which was formed after the establishment of the new government of the Republic of Serbia, consists only of addressees of the Law, i.e. public authorities which are obliged to respect and protect the right to access information whereas the beneficiaries of the Law, i.e. the representatives of civil society organisations, media as well as the professional and general public, have been excluded. In this way, participatory mechanisms in shaping the content of legal provisions, characteristic of a democratic legal order, are completely neglected.
Third, and directly related to the point above, the identified shortcomings are related to the transparency of the work on amending the Law. Namely, the MPALSG web page does not contain basic information on the drafting of the Law in the period following the establishment of the working group which currently works on the amendments, which means this activity is hidden from the public. The latest published information on the proposed legislative solutions dates from November 2019. In that sense, it seems that it could be easily concluded that the law, which should ensure the transparency of the work of public authorities, is drafted in secret, which is especially concerning if we take into account the recent statements of the Commissioner for Free Access to Information of Public Importance, which is also a member of the working group, that “Everything in the Law will be changed.”
Fourth, on the basis of the available information, the drafting of the Law after the establishment of the new Serbian government has not been organized in the manner prescribed by the Law on the Planning System. Here is a shortlist of provisions of that law which have been violated so far:
– Failure to recognise “stakeholders” and “target groups” referred to in Article 12, as entities participating in policy making;
– Violation of the principles of public policy system management referred to in Article 3, and especially the principles of relevance and reliability, prevention and precaution; equality and non-discrimination, transparency and partnership, as well as responsibility;
– Violation of the rules on drafting policy concept papers referred to in Articles 16 and 17 and in conjunction with the public policy regulatory measures referred to in Article 24;
– Violation of the rule on conducting ex-ante impact assessment referred to in Article 31;
– Violation of the rule on transparency of the work performed referred to in Articles 32-34.
In addition, according to the available information, no public debate on the draft Law has been planned yet, which may lead to a violation of the provision on conducting a public debate referred to in Art. 36 of the Law.
And fifth, on the basis of the available information on the work done so far on LFAIPI amendments, and especially on the basis of the insight into the proposed solutions from 2019, it can be concluded that there is a serious and imminent danger of the system of access to public information collapsing. Namely, in the context of the model of misapplication of laws that have so far been shaped in the practice of public authorities, the Commissioner for Free Access to Information of Public Importance and the Administrative Court, the adoption of the proposed solutions would, on one hand, allow for serious violations of the interest of the public to know when this interest prevails in relation to the opposite interest, and on the other, it would allow for violations of public interests and the interests of protection of the rights of individuals in cases when these interests prevail in relation to the interest of the public to know.
In Belgrade, February 11, 2021
The Coalition for Access to Justice members are the following organisations: Centre for Advanced Legal Studies, Civil Rights Defenders, Independent Journalists’ Association of Serbia, Independent Journalists’ Association of Vojvodina, PRAXIS, Humanitarian Law Centre, Youth Initiative for Human Rights, CHRIS – Network of the Committees for Human Rights in Serbia and Sandzak Committee for the Protection of Human Rights and Freedoms.