Authors: Eugene Matos de Lara and Audrey Beaulieu
“People have the right to know what those in power are doing” -Dunja Mijatovic Council of Europe, Commissioner for Human Rights.
Access to information legislation was first seen in 1766 in Sweden, with parliamentary interest to access information held by the King. Finland in 1951, the United States in 1966, and Norwayin 1970 also adopted similar legislation. Today there are 98 states with access laws; of these, more than 50 incorporated in their constitution. The Inter-American Court of Human Rights 2006 and the European Court of Human Rights 2009 both ruled that access to information is a human right, confirmed in July 2011 by the United Nations Human Rights Committee, a sine qua non of 21st-century democracy.
Global civil society movements have been promoting transparency, with activists and journalists reporting daily on successes in obtaining information and denouncing obstacles and frustrations in the implementation of this right. To this end, the Council of Europe was inspired by pluralistic and democratic ideals for greater European unity, adopted the Council of Europe Convention on Access to Official Documents recognising a general right of access to official documents held by public authorities. It brings a minimum standard for the fair processing of requests for access to official documents with the obligation for member states to secure independent review for restricted documents unless with held if the protection of the documents is considered legitimate.
The right to freedom of information
Access to information is a government scrutiny tool. Without it, human rights violations, corruption cases, and anti-democratic practices would never be uncovered. Besides exposing demerits, the policy is also known to improve the quality of public debates while increasing participation in the decision making process. Indeed, transparency of authorities should be regarded as a fundamental precondition for the enjoyment of fundamental rights, as guaranteed by Article 10 of the European Convention on Human Rights. The policy equips citizens and NGOs with the necessary tool to counter refusal from authorities to provide information. The European Court of Human Rights recognized that withheld documents could be accessed in specific circumstances. In principle, all information should be available, and those upheld can also be accessed, particularly when access to that particular information is crucial for the individual or group to exercise their freedoms unless of course, the information is of national security or of private nature.
Access to information in times of crisis a first line weapon against fake news
The COVID pandemic has enabled us to test access policies and benchmark the effectiveness of the right to know during trivial times, as Dunja Mijatovic mentioned. In fact, having easy access to reliable information protects the population from being misled and misinformed, a first-line weapon dismantling popular fake news and conspiracies. Instead, during COVID, access to information has supported citizens in responding adequately to the crisis. Ultimately, transparency is also a trust-building exercise.
Corruption and environmental issues
Information is a weapon against corruption. The Council of Europe Group of States against Corruption (GRECO) is looking at the specific issue of access to official documents in the context of its Fifth Evaluation Round, which focuses on preventing corruption and promoting integrity in central governments and law enforcement agencies. In about a third of the reports published so far, GRECO has recommended the state to improve access to official documents. In regards to the environment, the United Nations Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, commonly referred to as the Aarhus Convention, expands the right of access to information on environmental matters thus complementing the Tromsø Convention. Declaring these policies as the primary tools that empower citizens and defenders to protect the environment we live in.
Good models exist
Most Council of Europe member states have adequate mechanisms regarding the right to information. For example, in Estonia, “the Public Information Act provides for broad disclosure of public information” states Mijatovic. Moreover, “in Croatia, Serbia, Slovenia and several other countries there is an independent oversight body – such as an Information Commissioner – responsible for monitoring and enforcing the right to information, while some other countries entrust Parliamentary Ombudsmen with supervision of the right of access to information”. Finally, “the constitutions of several European countries do indeed guarantee the fundamental right to information.” Nonetheless, there are still in consistent levels of transparency among state institutions or a failure to meet the requirement for proactive disclosure. The entry into force of the Tromso Convention willbe an opportunity to bring back to the table the importance of the right to information and to read just European States practices regarding the enhancement.
Barriers and Challenges
Digitization is still recent, and authorities are not accustomed to dealing openly. There is a sentiment of reservation and caution. Before the advent of the internet, governments enjoyed a level of political efficiency and practical obscurity. Viewing public records required the time and effort of a visit to the records’ physical location and prevented easy access to details of individual files. Openness has made the policy cycle longer, with a more thorough consultation process and debates. The availability of digital documents has caused an unavoidable conflict.
One of the conflicts is a privacy protection and policy safeguards invoked against freedom of information requests. Requirements to provide transparency of activities must be mitigated with national security, individuals’ safety, corporate interests, and citizens’ right to privacy. Finding the right balance is essential to understand how local governments manage the dichotomy between providing open access to their records by maintaining the public’s privacy rights.
Several governments think twice before pursuing transparency policies. Access to information hasn’t been a priority for some of the European States. Mijatovic reported that “filtering of information and delays in responses to freedom of information requests have been observed in several member states”. Although there is a growth in these laws’ popularity, we are always a step behind meeting the supply and demand of information objectives in an era of digitization.
Tromso Convention has only been ratified by eleven countries, which are mostly located in Scandinavia (Finland, Norway and Sweden) or in Eastern Europe (Bosnia, Estonia, Hungary, Lithuania, Moldavia and Ukraine). Reading this statement, three questions should come to our minds:
1. Why not all European states have ratified Tromso Convention?
2. Why do Scandinavian countries have chosen to ratify the Convention?
3. Why are most of the Member States from Eastern Europe?
Regarding the first question, the answer resides in the fact that the ones who haven’t taken part in the Convention already have strong national laws protecting freedom of information and don’t need to bother with extra protection and external surveillance. For instance, Germany passed a law in 2005, promoting the unconditional right to access information. Many other European states such as Belgium, Croatia, Denmark, France &Poland have similar national law.
Regarding the second question, considering that all Scandinavian countries already have national laws assessing freedom of information, the most likely reason behind their ratification would be symbolic support to the cause or because the Convention’s framework is less restrictive than their national laws.
Finally, concerning the last question, we could suppose that most Eastern countries have an interest in demonstrating themselves as more transparent, more following the rule of law. For example, if we examine Montenegro’s case, we could assume that taking part in the Tromso Convention is a step closer to their accession to the EU in 2025.
As for the reservations that have been made, only Finland, Norway and Sweden have made some noticeable. Regarding Norway, the country declared that “communication with the reigning Family and its Household” will remain private in accordance with Article 3,paragraph 1 of the Convention. This limitation covers something interesting, considering that, as mentioned earlier, access to the data type of legislation was first adopted in order to get access to information held by the King. In parallel, Finland declared that “the provisions of Article 8 of the Convention concerning the review procedure [will] not apply to a decision made by the President of the Republic in response to a request for access to a document. Article 8 provides protection against arbitrary decisions and allows members of the population to assert their right to information. Sweden has made a similarreservation on Article 8 paragraph 1 regarding “decisions taken by the Government, ministers and the Parliamentary Ombudsmen”.
Thoughts towards better implementation
For smoother data access implementation, governments can act on transparency without waiting for legislation through internal bureaucratic policy. These voluntary provisions for openness can be an exercise towards a more organic cultural transformation.
Lengthy debates on open access are entertained by exceptions to access. To be sure, governments have enough legal and political tools to withhold information, regardless of how exemptions have been drafted. Instead, a more productive and efficient process is possible if we concentrate on positive implementation and enforcement, including the procedures for challenges on legal exemptions.
The implementation phase of access laws is challenging due to a lack of leadership motivation, inadequate support for those implementing these requests, especially since they require a long term social and political commitment. To do so, an overall dedication and government bureaucratic cultural shift should take place. Although the implementation of access to information should be included internally in all departments, considering a standardized centralized approach to lead the new regime with authority could send an important message. Record keeping and archiving should be updated to respond to requests with improved information management systems. As such, the goal would be to make a plethora of information immediately and unconditionally available.
Geopolitics of Europe and the Third Wave
With hospitals filling up across the continent, new variants of the virus proliferating and vaccine shortages biting back, Europe can be seen to be under the third wave of the COVID crisis. This wave has been a confused sea across Europe in which some national epidemics are worsening, some are reaching their peak and some are declining. Although lockdowns have eased as vaccine drives make headway, the end of state emergency does not undermine the inevitable long-term consequences of the crisis. COVID has brought to the forefront new geopolitical dynamics and created risks for the foreign policy of the European Union on several fronts. Beyond the epidemiological challenge of the impending health calamity, economic, political and geopolitical challenges are also plenty.
The crisis has held up a mirror to the Western countries as their effectiveness in managing the pandemic has been distorted and has brought about de-Westernisation of the world. As globalisation is under strain, the crisis is bound to redraw the borders between the state and the markets in democracies such as the Member States of the EU. Such an environment is likely to emphasise on national initiatives to the detriment of international cooperation. In a post-COVID world, the EU may have to deal with its geopolitical problems with less external credibility as well as internal solidarity among its member states.
The potential geopolitical consequences of the virus can be identified by extrapolating those trends that were taking place before the onset of the virus. Amidst evolving global scenarios, there has been a constant push from the EU to establish itself as a relevant geopolitical actor to realise its global power aspirations. In this context, it becomes important to note the two areas of concern raised by the crisis consist of questions on the internal cohesion of the EU and Europe’s ability to adapt to the increasing rivalry and competition among other global powers.
The EU as a player derives its identity from its supranationalism. However, with COVID wreaking havoc on the already unequal economy of the Northern and Southern Europe, the downslides of globalisation are being highlighted. This is likely to further embolden nationalist narratives, rather than European solutions. This will lead to the fragmentation of the region into its component member-states part, threatening the very identity if the Union. This has been a challenge to the EU as the Union recognizes solidarity as a fundamental principle as per Article 2 of the Treaty of the European Union. With the EU is facing the increasingly centrifugal ‘member states first’ approach put forward by the European capitals, the European integration project is under threat.
Further, with the pre-existing tensions between US and China, the European Union has been facing heat from both the sides of the Pacific. While the EU has put forward its own Indo-Pacific Strategy in order to constructively engage with the region, it continues to be challenged by America’s confrontational foreign policies and also being apprehensive of China’s refusal to open up their markets at a time of dwindling global economies, China’s assault on Hong Kong’s independence as well as China’s growing support towards the populist parties of Europe. The EU has come to perceive China as a systemic rival promoting alternative models of governance with this perception largely being shaped by China’s revisionist challenge and its alarming nationalist narrative.
It is important to understand that coronavirus is not here to kill geopolitics. However, the European Union will have to strengthen their efforts towards ensuring that the pandemic does not kill the EU as a geopolitical force. The European Commission must step up its efforts to broker the Multilateral Financial Framework (MFF) among member states which was long pending even before the pandemic struck the continent. It would enable the Union to act collectively in funding recovery efforts in a post-COVID reconstruction of the economies. Further, the EU should focus on shortening their supply chains pursuing a policy of strategic autonomy such that EU’s external dependencies are diversified. The need of the hour is to rebuild an economically sound healthcare Europe while at the same time working towards a more geopolitical Europe. This will require EU to continue investment as a full-spectrum power in military as well as other security capabilities along with assistance and aid to the neighboring countries to rebuild their resilience in a geopolitically volatile environment.
The EU needs to defend and promote the European model which is struggling to stand amidst the global battle of narratives along with maintaining its strategic autonomy in health, economic and other sectors. At the same time, the Union needs to bolster existing and forge new alliances in order to fill the gap on multilateralism. It needs to locate a strategic edge to resist the external pressures and protect its presence in the global scene and continue being relevant in the changing global order with its extraordinary transcontinental presence of soft power.
How a Democracy Can Be Undermined: Some Lessons
Democracies have an inbuilt flaw when their own processes can be employed to undermine them. It is what has happened in Hungary in the last decade, and Hungary is not alone.
In his youth the current prime minister of Hungary, Viktor Orban, was an ardent dissident leading a youth movement, Fidesz, and in 1989 he was calling for the removal of Soviet troops and free democratic elections. Opposition to single-party socialist rule was eventually successful, and he was elected a Fidesz member of the National Assembly in 1990.
In 1998, his party won a plurality, and he served his first term as prime minister until 2002 when the socialists returned to power. However, a landslide victory in 2010 gave Orban a two-thirds supermajority, and with it the power to amend constitutional laws.
Shortly thereafter in 2011 a new constitution was promulgated which gave the Fidesz control of the judiciary, and administrative commissions responsible for elections, media and the budget. Hence Orban’s ubiquitous presence on billboards around Budapest — a consequence of a law regulating billboards that he passed driving his supporter’s competitors out of business. Opposition flyers may now be found posted on poles and trees … and good luck seeing them at a distance.
With the opposition weakened, Hungary became a democracy backsliding to authoritarianism. In 2020, the parliament passed laws that allow Orban to declare an emergency at will and then rule by decree.
All of which poses a conundrum: Anti-democratic laws passed by an elected government undermine democracy yet at the same time can be considered the will of the people, even if they infringe their rights.
If one believes the U.S. is immune, consider elected politicians gerrymandering districts to remain in power. And if we believe for an instant that all of this is a right-wing phenomenon, we just have to glance at Venezuela and Nicolas Maduro.
Freedom House’s classifications of freedom in 210 countries note that Venezuela is not free. Orban’s Hungary is now only partly free in contrast with, say, the Czech Republic, another former communist East European state which is classified free.
In their book How to Save a Constitutional Democracy, Tom Ginsburg and Aziz Z. Huq argue that forces of democratic decay often accompany the appearance on stage of a charismatic leader holding the populace in thrall. They also note three pillars supporting democracy: free and fair elections, freedom of expression and association, and the bureaucratic rule of law. The latter implies the independent functioning of bodies like the election commission, the Federal Reserve, the Central Intelligence Agency, the Federal Emergency Management Administration and so on. This limits the power of the central executive unlike in Mr. Orban’s case.
Fortunately from the Ginsburg and Huq analysis the U.S. appears to be well insulated and employs freedom of association in particular to great effect. There can be chinks in the armor, however, as is happening in Georgia with new voter suppression laws.
Croatia Between Victory And Defeat
The first half of May in Croatia is marked by the anniversaries of two events from the end of the Second World War. With one democratic Croatia, which, if we believe its Constitution, is built on the foundations of anti-fascism (and opposite the so called Independent State of Croatia, established by the Ustasha movement, under the wings of Nazi Germany and fascist Italy) should be proud of, the other would be politically opportune not to mention at all, or keep within the limits of individual commemorations. We are speaking, of course, of Victory Day and the date of the surrender of the remnants of the Ustasha and Home Guard forces, united in the Croatian Defense Forces, on the Bleiburg field, ie the liquidation of still uncertain number od those made prisoners there.
The opposite is happening, however. Instead of being proud of the V Day, the official Croatian tries to push it into oblivion, and because it does (still) cannot, makes only certain protocol gestures. And the fact that during WW2 a Croatia existed which was on the side of Nazi-fascism existed and kept fighting to the last day, and even after that, that there was a Croatia which systematically committed war crimes against Serbs, Jews, Roma and Croats – political opponents, thus tarnishing the Croatian name, is persistently being pushed in the foreground. With a barely concealed positive context.
This is obvious not only from this year, but exactly in this, 2021. it becomes, perhaps, most clear than ever. And this presents the Republic of Croatia as a state that is dangerously turning into the waters of neo-fascism, that is, Ustashaism. Of high representatives of state, Victory Day was personally marked only by the head of State, who laid flowers at the tomb of national heroes, ie. Partisan fighters (representatives of high positioned politicians are not worth mentioning, they were really there just to satisfy form). And yes, one, the only (!) Academy was organized to mark that day by the Alliance of Anti-Fascist fighters and Anti-Fascists (and not the State!). It commemorated the Victory Day, the (almost forgotten) Day of the Liberation of Zagreb, and Europe Day, which is marked on May 9th in order to convey in this way the message that post-wEurope, and that should mean today’s Europe too, is built on the foundations of the anti-fascist struggle and on the values of anti-fascism. The current President was not present at that academy. There were two former presidents of the Republic and again – several representatives. The information about this celebration somehow found its way into the media, but that was all.
Public television marked this significant day by broadcasting one American and one Russian-Ukrainian film with a theme from the time of the Second World War. And with an unspoken message: that war in Croatia did not rage, and if by some chance it did – there are no films about it (what about some of world famous movies showing the antifascist struggle in Yugoslavia, such as Neretva or Walter defends Sarajevo?)
The other event, the surrender at Bleiburg and everything that happened after that, has been talked about for days. The state (Parliament) and the Church are maximally engaged in the organization of the commemoration of something that is as cynically as hypocritically called the memorial day for “Croatian victims in the fight for freedom and independence”. Mass celebrations and gatherings will be held in three (!) places in Croatia, and buses (even from Germany) are being organized to bring “pilgrims” to them. And what about pandemic? Everything will be, they say, in line with epidemiological measures and restrictions. They say so and they knowingly and recklessly lie, believing that the public is so stupid, or resigned, that something like this can be served to them with impunity, even on the eve of important local elections.
Since 1990, when the surrender at Bleiburg was publicly marked for the first time in Croatia (and when on that occasion the re-named Croatian Radio “shone” with a report, featuring Dinko Šakić, former commander of Jasenovac, one of about 60 concentration camps in the Ustasha state, who categorically stated that – if he lived again – he would do everything the way he did, this commemoration turned not into commemoration of those executed without trials after the surrender, but into regret over the defeat of the Ustasha para-state which, in accordance with Tudjman’s statement at the First HDZ congress, held in Yugoslav times, was “the realization of the centuries-old aspirations of the Croatian people too ”.
Austria has for years tolerated gathering on Bleiburg field, speeches that were often politically colored, highlighting of the Ustasha symbols and flags (the first white field in the Croatian coat of arms), but then – largely under pressure from Europe – denied its hospitality to the, as it was called by a reputable European medium, the largest gathering of radical right-wingers and neo-fascists on the Old Continent. Official Croatia, but also the “Church of the Croats” could not come to terms with that, so last year the “Bleiburg Mass” was held in Sarajevo (probably to remind how Sarajevo was part of the Ustasha state), while this year gatherings organized are being organized, it is worth repeating, on three locations in Croatia, the largest one in Udbina.
What message does such treatment of Victory Day and the date of capitulation of Ustasha and Home guard forces (along with other collaboraters from Yugoslavia) sends to Europe and to the whole world?
Just one thing: as far as Victory Day is concerned, we’re not sure whether it should be and how celebrated, because in the meantime we succeeded in transforming the winners into criminals and murderers, and their Supreme Commander as “one of the 10 mega murderer of the 20th century” , and are open to considering the Day of Liberation of the Croatian Metropolis as the day of the beginning of its occupation (this, under the mask of the freedom of public speech can be calmly stated today – as an explanation why the street of May 8th 1945. was abolished . On the other hand, we are very engaged in commemorating those forces and their members who, ignoring the unconditional capitulation of the Third Reich signed on May 8th in Reims and on May 9th in Berlin, continued fighting until mid-May, trying to escape Tito’s partisans, knowing that among the partisans there is hardly anyone who has not directly or indirectly felt the Ustasha terror. Official Croatia and the Chatolic church are commemorating and mourning their defeat, because they were – as it is written in a stone memorial at Bleiburg field “the Croatian army.” Were they really? And what were the Croatian partisans?
There is not a single country in the world that would organize commemorations for war criminals executed without trial or sentenced to death (and that there were such people in the Bleiburg field is an indisputable fact). Croatia is an exception – for now. And we have listed these two categories of post-war victims (if that is an appropriate term) because retaliation was not a specific feature of Yugoslavia. It took place, on a larger or smaller scale, for several weeks or several months in all the European countries occupied until then. In France, unofficial estimates list about 100,000 liquidated collaborators, while the leader of the Free Frence, who would later become the president of the Fifth Republic, General Charles de Gaulle, officially admitted 10,000, with the laconic remark : “Given what they were doing at the time of the occupation, France can live with this”.
Croatia may soon find itself in the company of several other countries, former Soviet satellites, which are well immersed in historical-revisionist waters, which allow marches of former members of SS units and which – like Ukraine – proclaims notorious collaborators (Stepan Bandera) as national heroes. But, will it mean that Croatia is on the right way by (almost) ignoring V-day and by glorifying and mourning the members of the collaborationist forces? Not at all! This will be just be another worrying indicator of the divisions within the European Union and of the abandoning, by some of its “young” members the ideas and ideals that guided those who conceived the project of a united Europe. That accepting the idea of the possibility of a new war (and the EU should have prevented it for all time) is not just a theoretical possibility, is best seen from the wholehearted adherence of part of the EU to the American policy of confrontation with the Russian Federation (even armed, military drills lasting for several months in Europe just now, demonstrate this).
And, finally, let’s go back to the name of the memorial day in mid-May, mentioned earlier. It is the memorial day for the Croatian victims in the fight for freedom and independence. What does that mean? That only Ustashas (Croatian fascists) and Home guards were fighters for Croatian freedom and independence? Given the date, such a conclusion seems only possible. But, if that is the case, then all those Croats (not to mention Serbs from Croatia) who fought in the ranks of the People’s Liberation Army were the enemies of Croatian freedom and independence. But, if somehow we “remembered” what is written in the Constitution, if today’s Croatia, democratic and independent Croatia, “generously” added Partisans to Ustashe and Home Guard, this would mean the completion and realization of morbid ideas of the first Croatian president Franjo Tudjman who wanted to bury the remains of the victims of fascism and anti-fascist fighters together with those who killed them in the area of the former Ustasha concentration camp Jasenovac. Tudjman then, under pressure from abroad (even from the USA), had to give up copying something that was realized in Spain during his long-term dictatorship by the openly pro-fascist genelisimus Francisco Franco (who in the meantime was “removed” from that memorial complex by democratic Spanish authorities). .
His successors went a step further. While Tudjman never attacked the People’s Liberation Struggle (he participated in it), nor did he utter an ugly word about Marshal Tito, they “bravely” abolished Marshal Tito Square in Zagreb (and none of the candidates for Zagreb mayor dares to say that he would return the square with that name), they tolerate and even encourage the harshest revision of history (as if learning from Serbian right-wingers, but also the current authorities who marked Victory Day with an academy with pictures of Chetnik leader Draža Mihailović and partisan leader Josip Broz Tito, claiming the resistance to fascism only for the Serbian people), they are (almost) ignoring Victory Day and glorifying the sacrifice of those who had been on the side of Nazi-Fascism throughout World War II.
Does today’s Croatia (not only the official) really has a dilemma: either to celebrate the V-day, or to mourn the surrender of quisling forces near Bleiberg, their defeat? Judging by what we are witnessing – no! And his is devastating not only for Croatia, but also for the European Union of which Croatia is a member .
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