At the end of March this year, the District Court in Banja Luka adopted the lawsuit filed by the Center for Environment (hereinafter referred to as the Center) against the Ministry of Transport and Communications of Republika Srpska (hereinafter referred to as the Ministry) for refusing to provide a copy of the Concession Agreement concluded between the Government of the Republika Srpska and Chinese partners for the realization of the Banja Luka – Prijedor – Novi Grad highway project.
The court has already ruled on the same matter, and in an administrative proceeding which was concluded at the end of October 2022, the court decisively ordered the Ministry to provide the requested Concession Agreement as it involves information of public importance.
However, as the Ministry once again refused to allow access to this document, citing confidentiality clause and protection of the commercial interests of the concessionaire, the Center was forced to seek its right of access to public information through the court. With the latest ruling, the Center has once again succeeded in exercising this right, and the Ministry, for the second time, is now liable to provide the requested agreement to the plaintiff.
“This is just one example that shows where the institutions of the Republika Srpska stand. The Center has been giving them a chance for all these years to show a different approach and for the institutions to start defending the interests of the citizens. However, each time we are surprised by the extent of servility of our institutions towards foreign and domestic investors. This is also one of the tests for the judiciary in Bosnia and Herzegovina to see if they are the last line of defense for the rights of citizens. Time and the increasing number of cases initiated by associations in BiH will reveal that,” said Tihomir Dakić, President of the Center for Environment.
It should be noted that in January 2023, the Center initiated a separate court proceeding in regard to access to public information, specifically a copy of the Feasibility Study prepared for the same project. The delivery of this document was also refused, and at the moment, the court case is pending.
Redžib Skomorac, Legal advisor at the Center for Environment, added: “There is a tendency to condition access to public information regarding specific projects that directly concern the management of public goods by third parties, to whom the decision-making on providing information is practically delegated by public authorities. Namely, the situation where the ‘public interest test’ – i.e., the test of necessity for providing requested information related to essential elements of legal contracts which are concluded on behalf of the citizens, is primarily conducted by the concessionaires themselves, is unacceptable. Information about such projects belongs to the citizens, and the public interest test must be carried out exclusively by legitimate authorities, especially by diligent evaluation of the benefits of providing the requested information and through the application of the principle of ‘proactive transparency.'”
We emphasize the alarming increase in opacity in cases of access to information of public importance, particularly regarding capital investment projects and the management of public goods since the implementation of these projects significantly affects the state of the environment, as well as the fundamental rights and freedoms of the citizens.
In the context of increasing pressures on common public goods, which increasingly results in the illegitimate predominance of commercial interests over the general public interest, or better say, the predominance of the assumption of endangering the commercial interests of private companies over human rights and freedoms, representatives of the Center demanded more proactive protection of citizens’ rights to information on concessions and related investments by foreign companies in a recent consultative meeting with the National Institution for Human Rights in BiH (the Ombudsman).
Therefore, we encourage the competent Ministry to act in accordance with the principle of proactive transparency and promptly provide the interested public with information regarding the implementation of the concerned highway project.