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Transparency of Public Procurement in Bosnia and Herzegovina - Between Theory and Practice

Author(s): Nermina Voloder / Language(s): English

Transparency is often singled out as one of the key indicators of a just and functional public procurement system, and it refers to the availability of all relevant information that enables stakeholders to become familiar with the rules and procedures applied in the public procurement process. If a public authority fails to ensure a sufficient level of transparency, it is impossible to ascertain whether the public procurement procedure was conducted impartially and in line with the rules. In that context, transparency in the implementation of public procurement contributes to increasing the accountability of public authorities and more efficient control of public spending. Contracting authorities in Bosnia and Herzegovina (BiH) are under the obligation to transparently conduct public procurement procedures and ensure fair and equal treatment of all tenderers in order to achieve the best value for public money. These principles are stipulated in the Law on Public Procurement in Bosnia and Herzegovina (hereinafter: LPPBiH) adopted in April 2014 as part of the public procurement system reforms and harmonisation of domestic legislation with European Union acquis. The new, modernised legal framework was established in BiH ten years after the adoption of the first Law on Public Procurement in 2004, which had shown numerous shortcomings in practice, including some to do with transparency. Although the new law introduced better norms for the aspect of transparency in public procurement, shortcomings that may have significant implications in practice are still evident. One of the aims of this analysis is to assess the extent to which the legal framework ensures an adequate level of transparency in public procurement in BiH, and how transparency could be improved. The analysis offers insight into the main obstacles to transparency in public procurement, especially in light of international standards and comparative practices, focusing primarily on existing legal and institutional solutions in this domain. It should be noted that the new Law on Public Procurement of BiH has been in force only since November 2014, and that certain bylaws relevant to transparency have not yet been adopted. That is why at this stage of research, insight into the practice of public procurement is still limited. This report focuses on the obligations of public institutions stipulated under the Law on Public Procurement of BiH to independently publish key information on public procurement that will enable the public procurement procedure and provide public insight into the process for awarding contracts. Access to all public information in the possession of any institution in BiH, including specific information on public procurement, may also be requested in line with the laws on free access to information adopted at the state and entity level, but this aspect of transparency is not the subject of the present analysis. This report takes into account the main conceptual discussions of transparency in public procurement processes. It then gives an overview of international standards in this area, focusing on European Directives for conducting public procurement procedures, and on decisions of the European Court of Justice. It also presents comparative practices in transparent public procurement in European Union countries with innovative approaches to improving the public procurement system, such as Slovakia and Portugal. The legal frameworks and practices of Western Balkan countries that have in the past few years made innovations to their legal and institutional frameworks for public procurement as part of the European Union approximation process are subject to a separate analysis. This primarily pertains to the experiences of Croatia, Serbia and Slovenia. Past reports on these issues, as well as the old and new legislative and institutional framework are also analysed. Finally, interviews were conducted with representatives of key institutions, including the Public Procurement Agency (hereinafter: PPA) and the Procurement Review Body (hereinafter: PRB), as well as with representatives of the business community in BiH.

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Labor Market Reforms in BiH: Flexibility without Security?

Author(s): Not Specified Author / Language(s): English

The labor market in Bosnia and Herzegovina (BiH) is facing mounting challenges. Unemployment is continuously high and employment low. Factors such as the wartime destruction of industrial infrastructure, loss of business links due to the dissolution of Yugoslavia, inadequate adaptation to the new business and technological environment, failed privatization processes, and a generally unfavorable macroeconomic climate have had a negative impact on creating new jobs. In addition, the almost daily protests by workers owed salaries or benefits by their employers indicate grave weaknesses in the system of social security and protection of workers’ rights.

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Analysis of Legal Protection in Public Procurement Procedures in Bosnia and Herzegovina

Author(s): Stanka Pejaković / Language(s): English

Legal protection in public procurement procedures implies a set of legal norms which govern the mechanisms available to participants in these procedures with the objective of protecting their rights and interests. The legal protection framework ensures the realization of several important objectives of public procurement. Competitive and transparent procedures in public procurement assist legal public authorities to get the best value for money when they procure products and services. This results in cost-effective spending of public funds, faster economic growth and greater competitiveness among entrepreneurs. Open and transparent procedures in public procurement influence prevention of discrimination, cronyism and corruption. From the standpoint of the European Union (EU) the objective of public procurement is also to open the market of public procurement for member states, enabling the participation of entrepreneurs in public procurement procedures outside the boundaries of a particular state. Legal protection is very important for the realization of the above objectives of public procurement. Legal protection regulations should ensure equal legal position for all entrepreneurs in public procurement, the efficient and timely implementation of public procurement procedures, and should also enhance legal security in this area. Unregulated or insufficiently regulated legal protection may cause direct damage to the economy as it enables the choosing of bids that are not necessarily the best. The fallout of this includes other negative effects (political, economic, sociological). Efficient legal protection increases the trust of the public in the transparency of procedures, and encourages entrepreneurs to participate in public procurement procedures. Efficient legal protection can also act as a preventive measure against a concrete contracting authority or other contracting authorities, in the sense of ensuring that there is no infringement of public procurement rules. Apart from their prominent position in any legal system, national norms regarding legal protection in the EU member states, candidate status states and accession states are founded in European Law, and as such, they are the result of the harmonization of national legislation with the requirements of European law. In this way the harmonization of legal protection in member states, candidate states and potential candidates is achieved. The request for harmonized procedures in member states derives from an understanding that different procedures in different states have a negative impact on the functioning of a unified European market. The European legislation is important for Bosnia and Herzegovina (BiH) not only as an instrument for the strengthening of the economy, but also in respect of the commitments undertaken earlier to gradually harmonize BiH legislation with that of the EU. One of the areas where BiH legislation is harmonized with European law is the area of public procurement. The subject-matter of this study is legal protection in public procurement procedures in Bosnia and Herzegovina, which is implemented as an administrative and administrative-judicial protection, in the manner of critically deliberating the relevant issues of legal protection of participants in public procurement procedures. The present analysis deals with the existing rules that govern legal protection in public procurement procedures having in mind the potential consequences of incomplete or inadequate regulation, which affects the rights and interests of participants in public procurement procedures. Above all, this study is focused on the analysis of rules which govern the basic legal remedy available to participants in the public procurement procedures against the decision of the contracting authority of the aforementioned action or omission of action or the procedure of the contracting authority, followed by an analysis of appeal in an administrative dispute. In this sense, the present study suggests the direction of possible legal intervention which could improve the legal protection rules in public procurement procedures in BiH with regard to the relevant European and comparative law. Accordingly, in addition to a review of legal protection in accordance with the existing de lege lata, this study also includes questions with regard to what this protection should be in view of the requirements of European law (de lege ferenda). The initial assumption in this analysis is that legal protection in any state is regulated independently, but the autonomy of member states (and future member states that have already undertaken some commitments) is restricted by EU rules. As a result, the conclusions in this study inevitably deal with the influence of the relevant European law regarding the provision of effective legal remedies in public procurement procedures by observing the practice of the European Court of Justice in Luxembourg (the European Court), and the regulations that govern the availability of legal remedies in the area of legal protection in some member states that have implemented European law (such as Croatia and Slovenia). The objective of this study is to see what lessons can be drawn from the experience of the aforementioned states and in what manner these lessons can be applied in BiH law with the aim of further improving the legislation of legal protection. Thus an insight is gained about the relationship between legal regulation and practice, and in this respect the inadequacies in the existing legal protection norms in public procurement procedures in BiH can be observed. The presentation of the methodological and analytical framework of this study (Chapter 2) is followed by a summary of the relevant EU legal acts (Chapter 3) and a subsequent analysis of the legal and institutional framework of public procurement in BiH (Chapter 4). In the chapter on legal protection (Chapter 5) procedural rules are analyzed. The results of this analysis are summed up in the Conclusion (Chapter 6). In Chapter 7 there is a list of proposals for possible decisions with regard to the previously recognized problems.

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Recommendations for the Improvement of Legal Protection in Public Procurement Procedures in Bosnia and Herzegovina

Author(s): Not Specified Author / Language(s): English

Legal protection in public procurement procedures implies a set of legal norms that regulate the mechanisms available to participants in public procurement procedures in Bosnia and Herzegovina (BiH) if participants consider that the decision brought by a contracting authority violates their rights and legal interests. An appropriate normative framework also ensures the realization of fundamental objectives of legal protection in public procurement procedures such as inspiring competition and preventing discrimination, cronyism and corruption. On the basis of such a normative framework, provision of goods and services at the best value for money is ensured, as well as cost-effective spending of public funds, faster economic growth and harmonization with the fundamental principles and other standards of European law.

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Preporuke za unapređenje Zakona o zabrani diskriminacije

Author(s): Not Specified Author / Language(s): Bosnian

Sveobuhvatni zakonski okvir za zaštitu od diskriminacije u BiH, usvojen 2009. godine, donio je uglavnom sve ključne inovacije specifičnog parničnog postupka za zaštitu od diskriminacije koje su predviđene evropskim antidiskriminacijskim pravom. Novi instituti kakvi su prebacivanje tereta dokazivanja na tuženu stranu ukoliko tužilac uspije da demonstrira pretpostavku diskriminacije, mogućnost učešća trećih lica kao umješača u postupku na strani tuženog, te kolektivna tužba koju udruženja, ustanove i druge organizacije koje imaju opravdan interes ili se bave zaštitom ljudskih prava mogu podnijeti u situacijama kada je postupanjem tuženog u pogledu više osoba povrijeđeno pravo na jednak tretman, svakako imaju značajan potencijal da unaprijede efektivnost sudske zaštite od diskriminacije i u Bosni i Hercegovini. No, prema dostupnim informacijama o broju sudskih postupaka povodom diskriminacije, taj potencijal nije iskorišten u dovoljnoj mjeri, imajući u vidu da se još uvijek tek manji broj žrtava odlučuje da potraži sudsku zaštitu. Na sličan način žrtve diskriminacije oklijevaju da se obrate i Instituciji ombudsmena za ljudska prava BiH. Takva situacija uslovljena je čitavim nizom faktora, među kojima značajno mjesto svakako zauzima zakonski okvir, čija pojedina rješenja nisu u najboljem interesu žrtava diskriminacije.

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Diskriminacija na osnovu mjesta prebivališta: Koliko razlike u tretmanu je dozvoljeno?

Author(s): Aleksandra Ivanković-Tamamović / Language(s): Bosnian

Diskriminaciju shvatamo kao svako različito postupanje koje ima za svrhu ili posljedicu da bilo kojem licu onemogući ili ugrožava priznavanje, uživanje ili ostvarivanje na ravnopravnoj osnovi prava i sloboda u svim oblastima javnog života. Razlika u postupanju predstavlja diskriminaciju ukoliko nema razumno obrazloženje, odnosno ukoliko nije uvedena kako bi se ostvario neki legitiman cilj, ili ukoliko nema dovoljno razumne proporcionalne veze između korišćenog sredstva i cilja koji se nastoji postići. Diskriminacija, nažalost, i dalje predstavlja dio naše svakodnevnice. A kad o njoj pak govorimo, najčešće govorimo o diskriminaciji na osnovu etničkog porijekla, invaliditeta i seksualne orijentacije. Pored toga, rodna diskriminacija zahvata najveći dio svjetske populacije, i kao takva sasvim sigurno (i “zasluženo”) ne samo da često predstavlja predmet diskusije, nego je pitanje od posebnog značaja za svako društvo, pa i bosanskohercegovačko. Ipak, kada govorimo o diskriminaciji, vrijedi podsjetiti se da se ona mijenja zajedno sa društvom u kojem se pojavljuje. Kroz vrijeme i prostor, oblici diskriminacije se mijenjaju. Tako, na primjer, možemo zapaziti promjene u polnoj diskriminaciji koja danas ima različite intenzitete u različitim dijelovima planete, a jednako tako se pokazivala u različitim oblicima kroz istoriju. Prije tek stotinu godina žene globalno nisu imale pravo glasa, niti su imale jednak pristup obrazovanju ili tržištu rada. Danas, bez obzira na to što je pravo glasa gotovo univerzalno (sa nekoliko rijetkih i uznemirujućih izuzetaka), pristup obrazovanju, ako ne jednak, onda bar dovoljno otvoren i ženama, a ravnopravnost u pristupu tržištu rada (opet sa nekim izuzecima) barem deklarativno postignuta, rodna nejednakost i diskriminacija je, zadržavši neka stara obličja, istovremeno uzela i neka nova, drugačija i suptilnija. Upravo imajući u vidu ovu sposobnost diskriminacije da metamorfira u izmijenjenim društvenim uslovima, instrumenti koji pružaju zaštitu moraju da dozvole dovoljno fleksibilnosti da mogu da se prilagode tim novim okolnostima. Tako i Ustav BiH, kao uostalom i Evropska konvencija, te Međunarodni pakt o građanskim i političkim pravima, kao i Međunarodni pakt o ekonomskim, socijalnim i kulturnim pravima, koji su u Ustav inkorporirani, garantuju zaštitu od diskriminacije sa otvorenom klauzulom “ili drugi status”. Zapravo, već je Univerzalna deklaracija o ljudskim pravima pozvala na jednaku zaštitu pred zakonom “bez bilo kakve diskriminacije”. Slično je rješenje predviđeno i Zakonom o zabrani diskriminacije, koji diskriminaciju definiše i s obzirom na “svaku drugu okolnost” koja za svrhu ili posljedicu ima nejednako postupanje bez objektivnog i razumnog opravdanja. Takva je fleksibilnost i otvorenost u pogledu mogućih osnova diskriminacije omogućila Evropskom sudu za ljudska prava da raspravlja o diskriminaciji na osnovu seksualne orijentacije, rođenja van braka ili promjene pola nakon operacije (gender reassignment following an operation), bez obzira što ti osnovi nisu bili pomenuti u samom tekstu Konvencije, a neki od njih vrlo vjerovatno nisu bili ni na umu tvoraca ovog regionalnog instrumenta u vrijeme kad su ga pisali – kasnih četrdesetih godina dvadesetog vijeka.

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Osnovni principi i dokazivanje “ostalih oblika diskriminacije” prema Zakonu o zabrani diskriminacije

Author(s): Not Specified Author / Language(s): Bosnian

Zakonom o zabrani diskriminacije (ZZD) definirani su različiti oblici diskriminacije: neposredna i posredna diskriminacija, te “ostali oblici diskriminacije”. Prema Zakonu, neposredna diskriminacija je “svako različito postupanje po [zabranjenim] osnovama, odnosno svako djelovanje ili propuštanje djelovanja kada je neko lice ili grupa lica dovedena ili je bila ili bi mogla da bude dovedena u nepovoljniji položaj za razliku od nekog drugog lica ili grupe lica u sličnim situacijama”. Posredna diskriminacija, pak, “podrazumijeva svaku situaciju u kojoj, naizgled neutralna odredba, kriterijum ili praksa, ima ili bi imala efekat dovođenja nekog lica ili grupe lica u nepovoljan ili manje povoljan položaj u odnosu na druga lica”. Ostali oblici diskriminacije definirani ZZD-om su: uznemiravanje po nekom od zabranjenih osnova, spolno (seksualno) uznemiravanje, mobing, segregacija, izdavanje naloga drugima za vršenje diskriminacije i pomaganje prilikom diskriminacije, te podsticanje na diskriminaciju u vidu zagovaranja nacionalne, rasne ili vjerske mržnje. Pravilno razumijevanje i razlikovanje navedenih oblika diskriminacije veoma je značajno, jer se temeljni principi i metode dokazivanja u sudskom postupku donekle razlikuju zavisno od oblika diskriminacije koji je predmet spora. Kako je elaborirano u prethodnom komentaru Analitike, direktna i indirektna diskriminacija imaju određene zajedničke karakteristike kada je riječ o njihovom dokazivanju. Temeljno je pravilo za ova dva ključna oblika diskriminacije jeste da u slučaju da tužilac demonstrira postojanje prima facie diskriminacije, teret dokazivanja da do diskriminacije nije došlo prelazi na tuženog. Osnovni metod kojim se to postiže je uporedni test, odnosno sagledavanje pozicije tuženog u odnosu na situaciju komparatora – osobe koja se nalazi u istoj situaciji kao i osoba koja u postupku tvrdi da je diskriminirana, ali se od tužioca razlikuje po relevantnim ličnim karakteristikama. Ostali oblici diskriminacije prema ZZD-u dijele temeljne principe, a naročito princip prebacivanja tereta dokazivanja, ali imaju niz specifičnosti u pogledu njihovog dokazivanja pred sudovima u antidiskriminacijskom postupku. Ovaj kratki komentar ima za cilj da ukaže na ključne specifičnosti ovih instituta i njihovog dokazivanja, koje bi i sudije, ali i zastupnici žrtava diskriminacije svakako trebali imati u vidu u njihovom djelovanju u sudskim postupcima za zaštitu od diskriminacije.

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International Assistance and Media Democratization in the Western Balkans: A Cross-National Comparison

Author(s): Tarik Jusić,Kristina Irion / Language(s): English

This is the concluding report of a project aiming to enhance the knowledge and understanding of conditions and factors that influence the creation of sustainable and functional media institutions in the democratizing countries of the Western Balkans, especially in contexts where there is a strong presence of international assistance programs and conditionality mechanisms. The project covers four countries that emerged from former federal Yugoslavia, i.e. Bosnia and Herzegovina, Kosovo, Macedonia and Serbia, as well as a fifth country, Albania. This report summarizes and compares the country and subject-matter-specific contributions with the aim of exploring the nexus between the democratic transformation of the media and international media assistance as constrained by the local political conditions. Although the countries of the Western Balkans share significant social, political, historical and economic traits, the region’s recent trajectory has not been very coherent. Since the collapse of socialism in the 1990s, all five countries are undergoing a difficult transition to democracy and a free market economy. They have in common a post-authoritarian legacy, relatively small territories and weak economies. However, these similarities should not obstruct the recognition of important differences in political traditions, local cultures and ethnic composition of the population throughout the region. In the past, political traditions of statehood differed significantly, characterised by periods of bloom and decline as well as external influences, notably from the Ottomans and the Austrian empire. The region’s conflict-ridden history has inspired the term Balkanization, which is widely used to describe a process of geopolitical fragmentation. After the disintegration of Yugoslavia and war with the Serbian hegemon, Bosnia and Herzegovina and Kosovo were founded as modern states. Macedonia was also affected by a limited conflict between its two majority peoples – Macedonians and Albanians. NATO undertook extensive military interventions against Serb forces in Bosnia and Herzegovina in 1995, and in Kosovo and Serbia in 1999. Albania alone went through a peaceful transition albeit the country took in many war refugees, mainly from Kosovo. All of the countries in the focus of this project are multi-ethnic but their composition varies to a significant degree. In Albania and Kosovo, Albanians are by far the majority people but there is a significant Serb minority in the latter. Serbia’s dominant majority are Serbs (83 percent of the population). In contrast, Bosnia and Herzegovina is the home of three constituent peoples (Bosniaks, Serbs and Croats) and in Macedonia ethnic Macedonians and Albanians coexist, among others. Today, out of these five Western Balkan countries two are in the antechamber of the European Union (EU). For some time already Macedonia and, recently, Serbia have had candidate status but the pre-accession negotiations are open-ended. Bosnia and Herzegovina, Kosovo and Albania are still potential candidate countries, and thus further away from their ultimate aim to accede to the EU. Striving for EU membership requires from these Western Balkan countries to comply with its democratic and market economy standards (the so-called ‘Copenhagen Criteria’). Today EU conditionality is a major driver of reforms in the region.

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Criminal Law Framework for Processing Hate Crimes

Author(s): Ljiljana Filipović / Language(s): English

Analysing the criminal law framework for processing a certain type of criminal offence presupposes that this criminal offence differs from other criminal offences by one or more characteristics and that this specificity has implications for the application of certain general institutes of criminal law (substantive and procedural). With hate crimes, this distinctive characteristic is the particular motive for their commission. This paper deals with the significance of this special characteristic for the processing of hate crimes understood as per the changes and amendments to the Criminal Code of Republika Srpska (hereinafter: CC RS), the Criminal Code of the Brčko District of Bosnia and Herzegovina (hereinafter: CC BD BiH) 2010 and the Draft Law on Changes and Amendments to the Criminal Code of the Federation of Bosnia and Herzegovina (hereinafter: CC FBiH), June 2013.

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Hate Crimes and Juveniles: Key Problems in Regulation and Processing

Author(s): Jasna Pećanac / Language(s): English

Bosnia and Herzegovina has seen an increase in significance assigned to combating hate crimes. These crimes have a particularly strong impact on our society due to the still present traces of war and the great importance accorded to ethnic, religious and national affiliation in our social and political life. Even though the international community used to devote most of its attention to war crimes, organised crime, corruption, money laundering and the like, in the past few years, the OSCE Mission in Bosnia and Herzegovina, in cooperation with civil society organisations, has taken on a leading role in an endeavour to ensure the application of international standards and obligations pertaining to hate crimes in Bosnia and Herzegovina (hereinafter: BiH). In these activities, special categories of perpetrators of these crimes, such as juvenile offenders, are quite justifiably, but still insufficiently, taken into account. Thus the 2009 Country Overview of Bias-Motivated Incidents in Bosnia and Herzegovina, among other things, points out hate crimes committed by juveniles and young adults. Five such cases are cited for the territory of the Federation of BiH (hereinafter: FBiH). However, in view of the general trend of insufficient and inadequate processing of criminal offences of this type in BiH general, we must conclude that their number is probably considerably higher. In general, juvenile delinquency entails prohibited behaviour through which juveniles endanger and violate the rights and freedoms of others, cause physical and mental suffering to others, or damage another’s property. The problems generally faced by the juvenile justice system in BiH certainly impact the efficiency of processing hate crimes committed by juveniles. However, given the specificity of the motivation and the consequences, processing juvenile perpetrators of hate crimes has (or should have) a series of specificities that arise from the nature of this type of crime. All bodies participating in proceedings involving juveniles should take into account these specificities in the interest of most fully achieving the aims of such proceedings – re-education, rehabilitation and reintegration of the juvenile in question. Given the still insufficient level of commitment to preventing and combating this specific type of juvenile offending, which has been on the rise in the current socio-political situation in BiH, this paper will focus on dispelling dilemmas and quandaries about whether and to what extent the existing legal framework and basic procedural principles applicable to juveniles in conflict with the law can adequately be applied to hate crimes, with particular reference to the significance of preventive activities applied to juveniles in general, and in particular with respect to these types of criminal offences. Moreover, focusing on juveniles as a specific population, but also as potential perpetrators of hate crimes, which are specific by nature, this paper aims to point out possible problems in the practice of prosecuting juvenile perpetrators of hate crimes. This is, of course, another specific characteristic of combating juvenile offending as a whole and involves complex issues. Therefore, at the present stage of defining initial steps in processing hate crimes, this paper will not and cannot encompass all its aspects, but can hopefully contribute to drawing attention to this important topic in the Bosnian-Herzegovinian context.

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The Importance of Prosecuting Hate Speech in a Post-Conflict Country: Lessons for, and from, Bosnia and Herzegovina

Author(s): Francesco de Sanctis / Language(s): English

The use of criminal law to oppose hate speech and its compatibility with freedom of expression is one of the most contentious issues in the contemporary legal debate. This is not hard to believe if one considers the role of that freedom as a building block of democracy.

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Drawing The Line in Bosnia and Herzegovina: The Advocacy of Hatred Constituting Incitement to Hostility, Discrimination, and Violence

Author(s): Andrew Smith / Language(s): English

In this paper, ARTICLE 19 assesses the extent to which the criminal legal framework within Bosnia and Herzegovina (BiH) complies with its obligations under the International Covenant on Civil and Political Rights to protect and promote the right to freedom of expression while prohibiting the “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” (“incitement” or “the advocacy of hatred that constitutes incitement”). Prohibitions on incitement in each of the four BiH criminal codes are poorly formulated and conflate a number of distinct issues. Key components of incitement, such as the need for “advocacy of hatred”, are overlooked and not included as essential elements of criminal offences. One consequence of this the blurring of the line between expression that should be prohibited and other forms of protected speech, including the right to offend others or denigrate national symbols and objects. At the same time, incitement is conflated with other forms of bias-motivated crimes, such as torture or property damage. Despite national, ethnic and religious tensions within BiH remaining very high, criminal prohibitions on incitement have not been enforced to sanction the most harmful forms of expression in the country. Absent specific provision for recognising bias-motivation in the commission of any criminal offence (prior to 2010 bias motivation was only recognised within a limited category of offences under each code), the incitement provisions have instead been used to prosecute bias motivated crimes where there was no advocacy of hatred or expression central to the case. Since reforms to the criminal codes in 2010 have provided alternative provisions for prosecutors to punish a broader range of bias-motivated crimes that are not incitement, there is now a strong case for reforming the incitement provisions so that they specifically address the most severe forms of harmful expression, while according adequate protection to fundamental rights. The analysis arrives at a series of recommendations to reform the criminal codes in BiH so that they comply international standards. We encourage all relevant stakeholders to initiate a national debate on this issue, and for any reforms to be treated as an opportunity for not only reshaping the criminal law but assessing where alternative prohibitions and positive policy measures may more effectively promote tolerance and protect the right to freedom of expression.

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Media Assistance in Serbia: Achievements and Challenges

Author(s): Davor Marko / Language(s): English

Media assistance programs played a significant role in the development of media system in Serbia during last 20 years. While in 1990s media assistance efforts focused on ensuring the survival of independent media outlets under the authoritarian rule of the Milošević regime, the scope of the assistance expanded after the regime collapsed in 2000, to address a range of issues, such as legal reforms, the establishment of regulatory bodies, the transformation of the state TV into a public service broadcaster, professionalization of journalism, and management of media outlets. However, in many ways the reforms still depend on continuous external support. Hence, this policy brief outlines key challenges to the media reforms, and lists several lessons that could inform the future media assistance efforts in Serbia.

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International Media Assistance in Bosnia and Herzegovina: Lessons Learned

Author(s): Nidžara Ahmetašević,Tarik Jusić / Language(s): English

Bosnia and Herzegovina has benefited from comprehensive and prolonged international media assistance efforts during the last two decades: the legal framework was thoroughly reformed; regulatory and self-regulatory mechanisms were introduced; the independent and commercial media sector received substantial support; and a public service broadcasting system was created. However, many reform initiatives have been met with fierce resistance, while others failed or were only partially successful. In some cases, once the donors and international actors reduced their involvement, the reform processes stopped or were reversed. This policy brief looks into the complex relationship between the local context on one side, and the media reforms that were initiated through international assistance programs on the other. The goal is to identify some of the key challenges to the media assistance efforts in the country, and eventually to draw some lessons for future assistance projects.

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Media Reforms through Intervention: International Media Assistance in Bosnia and Herzegovina

Author(s): Nidžara Ahmetašević,Tarik Jusić / Language(s): English

Bosnia and Herzegovina (BiH) is often considered one of the most prominent examples of comprehensive international intervention into local affairs aimed at post-war state building, including institutions of the local media system. International actors played an important role in creating legislative frameworks and regulatory institutions for the media sector, started the reform of the PSB system, supported the development of independent media, and initiated the introduction of a self-regulatory framework. These efforts have resulted in the pacification of media discourse and elimination of outright ethnically-charged hate speech, and have opened up the media space for opposition voices and alternative sources of information.

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Prosecution of Hate Crimes in Bosnia and Herzegovina - The Prosecutors’ Perspective

Author(s): Marija Lučić-Ćatić,Amir Bajrić / Language(s): English

Hate crimes, understood as offenses motivated by hatred or prejudice against a particular group, are extremely damaging because of their harmful effect on the very foundation of society and trust between communities. In Bosnia and Herzegovina (BiH) these offenses are particularly dangerous because of their substantial potential to increase the existing tensions and negatively affect the trust building process and genuine recovery of the whole society. On the other hand, the legacy of the local war in the nineties of the last century, the existing fragmentation of the society, the dominance of collective identities and the media propagation of intolerance (and hatred) on a daily basis all contribute to the perception that in BiH society incidents motivated by hatred are not only ubiquitous, but generally accepted as “normal”. Bearing in mind how important and serious the repercussions of hate crimes may be, it is imperative to introduce comprehensive preventive measures and activities and improve criminal legislation in this area. However, the successful prosecution of hate crimes in BiH requires much more than adopting an appropriate legal framework. The efficient implementation of the legal framework and the improvement of hate crime prosecution are subject to solving a number of concrete problems. In this regard, while taking into account the existing legal framework in this field in all of the four BiH jurisdictions, this study seeks to identify the key problems that prosecutors may face in bringing charges of hatred or deciding whether to classify a crime as a hate crime, and to establish how to overcome these problems. In other words, the fundamental objective of the study is to determine the underlying issues in this area and offer recommendations that would serve as a basis for creating the necessary conditions for the successful and adequate prosecution of hate crimes in BiH. The methodological and conceptual approach used in this study differs from that of most previous analyses and studies dealing with the issue of hate crimes, especially in BiH, which have primarily focused on analysis of the legislation, its compliance with international standards, and the reasons it was introduced. This study, with its particular approach, is primarily intended for the legislative and executive bodies, the prosecution services and the police, the BiH High Judicial and Prosecutorial Council (HJPC), training centers for judges and prosecutors, as well as for all experts and practitioners who deal with the issue of prosecuting hate crimes in BiH. In accordance with the specified orientation, the study first presents the conceptual and legal framework, as well as the analytical and methodological approach to the research. After this an analysis of the implementation of hate crimes legislation in each of the BiH jurisdictions is presented. In the next section of the study specific problems which prosecutors face in their practice are analyzed, and the specific structural problems that are important to the (non) prosecution of hate crimes in BiH are clarified. All of the above provide a sound basis for the final part of the study, where, together with the concluding remarks, recommendations are given for improving the prosecution of hate crimes in the BiH context.

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Criminal offence of Inciting National, Racial or Religious Hatred, Discord or Hostility: Lack of Precision Within the Norm and Problems in its Practical Application in Bosnia and Herzegovina

Author(s): Not Specified Author / Language(s): English

Differences in the stipulation of the criminal offence of inciting national, racial or religious hatred, discord or intolerance (hereinafter: inciting hatred), imprecise formulations and lack of definition of the key terms in the description of this offence in the four currently applicable criminal codes in Bosnia and Herzegovina (hereinafter: BiH) hinder the efficient and consistent prosecution of these crimes.

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Prosecuting Hate Crimes in Bosnia and Herzegovina: Problems in Prosecutorial Practice

Author(s): Azra Kuči / Language(s): English

Taking the current legal regulations pertaining to hate crimes as a starting point, Analitika conducted research to identify some of the key problems faced by prosecutors in Bosnia and Herzegovina in their practice of prosecuting hate crimes. The research has shown that problems arise at the very beginning of the investigation, due to shortcomings in police reports. The absence of official indicators for recognizing bias motivation causes difficulties for prosecutors and for the police. Furthermore, there is a perception of the prevalence of various manifestations of hatred and bias, which leads to difficulties in distinguishing important from less important incidents motivated by hatred. There are also practical problems, foremost among them being the lack of training in this area, lack of access to relevant literature and examples from comparative case law. Another significant factor contributing to the inadequate prosecution of hate crimes in Bosnia and Herzegovina is related to structural problems such as the absence of a procedural protocol for these cases and the insufficient cooperation of prosecutors and the police with civil society.

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Towards Proactive Transparency in Bosnia and Herzegovina

Author(s): Not Specified Author / Language(s): English

Freedom of access to information (FOI) laws in BiH should be changed. That is confirmed by numerous analyses and discussions, which have for years indicated the shortcomings of the current state and entity-level laws. Inter alia, in cases when a relevant public body refuses access to information, the appeal process is not sufficiently defined by law. Although freedom of information laws are applied as lex specialis, many laws which were later adopted in practice limited access to information. The public interest test, foreseen by all three acts, is arbitrarily applied in practice, while the access to information is often baselessly refused, using legally defined exceptions as reasons for refusal. Meanwhile, a procedure for amending the existing state law, which was started in early 2013, actualized the discussion about the need for achieving a balance in existing laws between the right to access information and the right to privacy, in accordance with international standards.

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Building Media Systems in the Western Balkans: Lost between Models and Realities

Author(s): Katrin Voltmer / Language(s): English

When dictators fall, the rhetoric of ‘revolution’, ‘liberalisation’ or ‘new era’ often disguises the enormous difficulties that lie ahead. Beginning with the fall of the Berlin Wall that marked the end of the Cold War, democracy has spread around the world in breath-taking speed. However, as the ‘third wave’ comes of age, it becomes ever more evident that bringing down dictatorships is one thing, but building sustainable democratic institutions and media systems is quite another. The working papers produced within the project “Development of Functional Media Institutions in Western Balkans – A Comparative Study” provide vivid evidence of the many obstacles, errors and set-backs – but also of the achievements – that accompany the attempt of transforming media systems that hitherto have served the needs of an authoritarian regime into democratic institutions. Each of the working papers covering one of the five successor states of former Yugoslavia describes in much detail the policies that have been implemented to rebuild media institutions and journalistic practices in an environment that is marred not only by the legacy of socialism, but also by the trauma of war, deep societal divisions and economic decline. Given the importance of the Western Balkans for the stability and prosperity of Europe, considerable efforts have been made by the international community to build democracy in the region. Thus, besides describing the problems of transforming media systems in post-authoritarian countries, the working papers of this project also provide unique insights into the mechanisms and consequences of international media assistance in emerging democracies. In spite of the undeniable progress that has been made, the accounts given here are also rather sobering. The policies pursued by international donors often lack long-term sustainability and in some cases exacerbate rather than ameliorate existing problems. Taken together, the significance of this working paper series goes far beyond the region of the Western Balkans. The outstanding scholarship and in-depth knowledge brought together in these working papers also help to better understand the dynamics of media transformation in other emerging democracies around the globe. While some of the problems the media in the countries of former Yugoslavia are struggling with are unique for the region – for example the extremely small media markets of countries whose populations range between less than two million (Kosovo) and some seven million (Serbia), many others show striking similarities with developments in other new democracies. For example, issues of persistent political interference into journalistic decision-making, low levels of journalistic professionalism, political parallelism and sharp polarisation of public communication are common features around the globe. Moreover, the emphasis on the work of media assistance organisation described in these working papers further highlights the difficulties that arise when transplanting the institutions and norms of democracy as practiced in established (mainly western) countries to contexts that either do not have any, or only little, experience with democratic governance or are part of cultural and historical traditions that have little in common with western traditions. These apparent discrepancies between the established democracies of the West and the fledgling semi-, partial or defective democracies of the ‘third wave’ have provoked the question whether democracy and its essential ingredient of a free press can be exported to other contexts. As elsewhere in the post-communist world of Eastern Europe, policy makers in the countries of former Yugoslavia have looked out for role models in established democracies as guidance for the reconstruction of their media systems. Hallin and Mancini’s models of media systems have become an influential framework not only for academic research, but also for policy choices to design media systems in emerging democracies. The three models proposed by Hallin and Mancini identify the key dimensions of media systems of the regulatory arrangements and behavioural patterns that organise state-media relationships, media markets, journalistic professionalism and the relationship between the media and the main cleavages in a society (‘political parallelism’). The resulting ‘ideal types’ are the ‘liberal model’ that is characterised by low levels of state regulation, commercialism and objectivity and neutrality as key journalistic norm; the ‘democratic corporatist model’ that includes a strong public service element and the attempt to accommodate different interest and groups; and the ‘polarized pluralist model’ that is dominated by partisan journalism and a close relationship between politics and the media. Hallin and Mancini’s analysis, which focuses exclusively on Western media systems, reveals that the ‘liberal model’ is predominant in Anglo-Saxon countries, the ‘democratic corporatist model’ can be mainly found in the welfare states of Northern Europe and the ‘polarized pluralist model’ covers mainly the Mediterranean countries. Even though Hallin and Mancini emphasise that these models are empirical descriptions that do not imply any evaluation of the quality and adequacy of the kind of public communication each of the models provides, the ‘polarized pluralist’ model is widely seen as deficient and least desirable. Recent studies that have applied Hallin and Mancini’s models to non-western countries and in particular the new democracies of the ‘third wave’ have come to the conclusion that it is the ‘polarized pluralist’ model that best characterises cases outside the Western world. However, it appears implausible that eighteen Western media systems are diversified across three different models, whereas the rest of the world is lumped together into just one. Besides the conceptual problems this lack of variance throws up, the classification as ‘polarized pluralist’ usually also implies a normative judgment that marks these non-western and emerging media systems as immature and flawed. In this concluding working paper I want to explore in some more detail the empirical and normative underpinnings of democratic media systems, in particular the ‘polarized pluralist’ model. The paper aims to address some of the theoretical and normative issues involved in transforming post-authoritarian media systems, which have been described and analysed in the country studies of this working paper series. The discussion starts by introducing the concept of ‘social constructivism’ as an effective theoretical tool to understand processes of institutional change in processes of democratic transition. Two key elements of media systems serve as examples to demonstrate the ‘social construction’ of norms and practices in different social and political contexts: partisanship and pluralism. While partisanship is seen as a deficiency of media systems, albeit widely practiced, pluralism is valued as an indispensible norm of democratic media, yet difficult to achieve.

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