Judicial Institutions and Media in BiH: Can Journalists Publish Documents Marked as Secret?

SARAJEVO, (Patria) - Journalists should not publish documents marked as secret, according to renowned Sarajevo attorney Vasvija Vidović, commenting on documents and information from the Intelligence-Security Agency of BiH (OSA), the Prosecutor's Office of BiH, and other security agencies in the country that sometimes end up in the media, even while judicial processes related to that information and those documents are ongoing.

Such occurrences are not only common in the media in Bosnia and Herzegovina but are also noticeable throughout the entire region.

Should a journalist publish every piece of information they come across?
Should Avdo Avdić, a journalist from Žurnal who published information about the recruitment of Salafists by the Croatian Security Agency (SOA) against BiH, have shared that information with the public, or should he have handed the data over to BiH security agencies?
What if that information was provided to Avdić by the security agencies themselves? If so, did both the officials of those agencies and the journalist act unprofessionally?
How should a journalist behave when they obtain data marked as „secret“?

Did the news agency Patria make a mistake in 2015 when it published the testimony of the former director of the Indirect Taxation Authority of BiH, Kemal Čaušević, given to the Prosecutor's Office of BiH, in which Čaušević revealed dozens of politicians from BiH, including those at the top of the state, who, according to that testimony, were involved in millions of euros worth of crime at the expense of the BiH budget? Four years after the publication of that document, the Court of BiH has still not convicted anyone?!

Attorney Vasvija Vidović believes that certain information or documents definitely do not belong in newspapers, but rather in judicial institutions.

According to the Law on Protection of Secret Data, explains Vidović, certain documents are categorized as internal documents, confidential documents, or strictly confidential... Such documents should not be handed over to the media by institutions, says Vidović, adding that the procedure for publishing documents from security agencies is clear: all documents that the media cannot obtain from institutions by invoking the Law on Freedom of Access to Information should not end up in the public domain in any other way.

When asked whether publishing confidential documents in the media can disqualify those documents from an ongoing court proceeding and jeopardize the entire process, Vidović explains that the court does not assess the validity of evidence based on whether the document was previously published elsewhere, but rather on whether it was legally obtained.

„In other words, the procedure by which the evidence was obtained is assessed,“ says Vidović in a comment for Patria.

„If I am a prosecutor, and I have obtained documents legally, and a report has been made about that in accordance with the law, those are documents I will use in court. The fact that some of those documents were published in newspapers means nothing from the standpoint of the court proceedings. However, it is evident that publishing such documents in the media diminishes their substantive value. Because, if you release that information to the public, it certainly directly affects the course of the investigation,“ says Vidović, adding that protected documents from court proceedings must be treated exclusively within judicial institutions, not in the media.

„The criminal offense of publishing secret data can be committed by the person who makes the document available to a journalist, but also by the person 'who disseminates that document,'“ says Vidović.

The Dean of the Faculty of Criminalistics, Criminology and Security Studies in Sarajevo, Professor Nedžad Korajlić, assesses that security agencies sometimes decide that certain information should be released to the public, but the problem arises if individuals from security institutions, without an institutional decision, provide confidential data to the media that the public should not know about.

„If individuals leak certain security data to journalists, then we have a problem,“ says Professor Korajlić.

Media expert Mehmed Halilović assesses that a journalist in every situation, including when it comes to publishing documents marked as secret, should be guided by the public interest.

„The key criterion is the public interest. The journalist should assess whether there is a general public interest in a given topic. If they assess that there is a public interest, then there is no obstacle to publishing the information even if it carries a secret mark,“ says Halilović, adding that such a decision should be defensible if it comes to a court process.

„If certain documents are marked as secret, the journalist should respect that, but again the criterion is the general public interest. Because a secret document could also be about some abuses in the service, in a ministry, and so on, about which the public certainly should be informed,“ says Halilović.

Media analyst Amer Džihana also believes that just because something is declared secret information does not mean there is an absolute ban on its publication.

„In each individual case, one should assess whether the greater interest lies in protecting that information or in publishing it,“ says Džihana, adding that international standards are such that even if a journalist publishes secret information, the possibility remains to prove one's intentions in court.

"The idea is that even if secret data is published, in that case too there is judicial protection for the journalist, where they can explain why they published that information, and then the court assesses whether it was in the public interest or not. So, there is no automatic punishment,“ says Džihana.

Both Halilović and Džihana conclude that journalists are always required to act in accordance with the demands of professional ethics.