About interception, overhearing, media and price of investigative reporting


By: Senad Avdić

During the court trials at the International Criminal Court for War Crimes in the Hague (mostly related to persons convicted for “joint war crimes” in their “attempt” to make Greater Serbia), one of the most common evidence, proof or arguments were so called intercepted phone calls between highest ranked political officials of Serb Democratic Party with other Serbian officials, months prior to the beginning of war in Bosnia and Herzegovina. These included phone calls between Radovan Karadžić with highest ranked governing officials in Serbia, including Slobodan Milosevic, but also phone calls and conversations between Serb Democratic Party officials and other Serbian officials coming from cultural, intelligence and military branch in Serbia. These intercepted phone calls (hundreds of them, all being used during court trials as evidence), were more or less most important evidence proving and confirming direct interference of Serbian governing authorities in their preparation of war, that is, their plans to launch a military aggression against Bosnia and Herzegovina, but also proved their partial interference in Croatia as well. This is how general public became aware of the controversial “RAM” Plan, which was a code name for “framing” all Serb – populated areas in Bosnia and Croatia, deriving directly from intercepted phone calls between Slobodan Milosevic and Radovan Karadzic. “Radovan you know what “RAM” is, don’t you”, asked Serbian leader the head of Bosnian Serbs during their conversation held in autumn 1991 and Bosnian leader then replied:” I do, I do” (Transcript of this conversation was firstly published in “Vreme””, Serbian political weekly magazine).

At that time, State Intelligence Officials in Sarajevo were probably miles from even imagining that (while they were intercepting and recording these conversations) one day these phone calls would be used as court evidence and especially be used by prosecutors at the international war crime courts! However, in 1193, after UN Security Council had established International War Crimes Court for former Yugoslavia, the Hague Tribunal began first indictments for war crimes in Bosnia and Herzegovina, Sarajevo official authorities were requested to provide audio – recordings and transcripts of intercepted phone calls that, until this moment, had been periodically been released in public. In order to have these material taken into serious consideration and treated legally; Hague Tribunal demanded from Sarajevo official authorities to reply to their question whether they had legal rights to intercept these phone calls held between Serb Democratic Party officials. 

According to the existing Law, phone calls interceptions by the National Security officials had to be approved by the three key institutions; namely, BiH Presidency, BiH Government and Ministry of Interior Affairs (the Police authorities). Luckily (not for every side involved in this process though), during the pre – election appointing combinations, key functions in the above listed institutions were not held by any Serb Democratic Party officials, instead they were run by Alija Izetbegović, Jure Pelivan and Alija Delimustafić. Should any of the three mentioned officials disapproved the phone call interceptions and audio recordings, the whole thing would have been illegal or it would not have been conducted in the first place. Some witnesses claimed that the day the Hague Tribunal informed Sarajevo that the audio recordings were legally conduced, local prosecutors openly expressed their relief and some of them were even celebrating.

 “Legally supported” interceptions

This sample from the Hague Tribunal judiciary practice may not perhaps be the most recent one, but it can still be used as main thematic line of this particular article (text): legitimate public releasing of audio and video material recordings (footages) that had been collected by secret and hidden methods and techniques. The remaining question does appear hypothetic, but it is not entirely without solid foundations: would, for instance, Radovan Karadzic, or some his collocutors whose conversations had been recorded, be able to sue media houses that have been broadcasting these conversations if there had been enough sufficient arguments proving that the recordings were illegal? Would National Security officials be officially and legally held responsible for illegal recordings or as they often refer to, held responsible for conducting “special investigation operations”?

Approving special investigative operations, that is, phone conversation intercepting in post – war Criminal Law is no longer in hands of politicians (as it used to be in past period), instead, these measures have been conformed with Western practice and can be approved by court bodies upon prosecutors’ requests. Basically, and formally speaking there should not be any problems here; however, the discrepancy between normative and practical, legal and genuine is huge and insuperable. For thorough implementation of normative and pre-established regulation of presumptions we should have an independent, professional and efficient judiciary system and this system does not exist in Bosnia and Herzegovina – not even close. Judiciary system has been, according to estimates by many relevant, professional and referring analysts (both local and international) very unprofessional and inefficient, because it has been strongly influenced by numerous political, economic and criminal groups and individuals.

Let us take few drastic samples in order to convince ourselves in what we already know, but rarely decide to make public discussions about it. More than four years ago, Prosecutors’ Office in BIH had, as part of the investigation case against Fahrudin Radoncic, demanded the approval from the Court of BiH special operations including the interceptions of his phone calls and other communication means over this local politician and businessman. Court of BiH approved this demand and intercepted and collected phone call conversations were accordingly used in this particular case against Radoncic and his associates as evidence. Goran Salihovic was chief prosecutor at the time and Meddzida Kreso was president of the Court of BiH. Anyone with average knowledge is aware that, looking from present point o view, this particular action directed against Radnocic or any other political and national leader would simply not be possible. Can you even imagine, for instance, that Prosecutors’ Office in BiH launch an investigation case directed against Milorad Dodik after open admitting during his speech in Republic of Srpska Parliament that his intelligence service operators had been overhearing and intercepting phone call conversations of his political opponents? Imagine that, as part of investigation process against Dodik, someone dares and requests the approval from Court of BiH special investigative operations (including phone call conversations and interceptions) in case directed against the member of the Presidency of BiH? Wouldn’t something like this seem little bit like science fiction movie? It would be as if pre – war national security officers had to ask Momcilo Krajisnik, speaker of the house of representatives of BiH (Parliament) to approve overhearing and phone call conversation intercepting of Radovan Karadzic.

Judiciary epilogue of greatest judiciary and media affair last year, namely “Calking”, detected by “Zurnal” (local web site) actually displayed that the only suspect in the entire case (with Milan Tegeltija, former president of High Judiciary and Prosecutors Council being involved in this case), was actually the person who had recorded the utmost glaring case of systematic corruption, Nermin Alesevic, a local businessman. “Zurnal” journalists, those who had released video recording had to undergo investigation run by the Prosecutors’ Office of BiH. According to Prosecutors Office of BiH, the entire operation was conducted and video recording released illegally. As far as legal correctness is concerned, it would have been perhaps most accepted and pursuant to regular procedures that Nermin Alesevic had asked Prosecutors Office, precisely, Gordana Tadic or Oleg Cavka, to allow him to secretly record the conversation during the meeting with Milan Tegeltija at local Banjaluka pub. Afterwards, in deepest discretion and secretly and at the request of Prosecutors Office, this procedure should have been approved by Ranko Debevec, president of the Court of BiH or by some of his inferior judges. This scenario would be even very difficult to imagine, let alone conduct.

“Two geezers”, “Calking”, “Asim”…

The foundation for some of the most important stories in last couple of years in both, world and Bosnian media space had been secretly recorded, including video and audio recordings confirming criminal, corruption, immoral deeds, clientelism of holders of highly ranked functions in politics, judiciary system and health and Medicare system. Most famous case of journalists using secret recordings with the purpose of proving political corruption in Europe is without doubt the operation of “Spiegel”, a German political magazine, aimed against Christian Strache, former Austrian vice – chancellor. The story is well known as well as its political epilogue. Certain female journalists, who had introduced herself as agent of Russian capital investors, organized a social event with Strache at Ibiza, famous Spanish holiday resort. Austrian politician, having no doubts about the true identity of this lady, promised to provide help to Russian tycoons so they could buy certain media houses in Austria, as well as some “small and tiny favors”. After “Spiegel” had released the results of their investigation, not only Strache had to resign, but this affair resulted in the dismissal of entire government of Austrian, the government led by Sebastian Kurtz, Austrian chancellor.

As far as local media affairs are concerned, in 2015 an affair titled “Two geezers” had appeared, followed by the release of secret audio recording where Zeljka Cvijanovic, former Prime Minister of the Republic of Srpska was talking to her collocutor about “buying off’ two opposition representatives (so called “Two Geezers”) needed for forming an SNSD majority in their parliament after the 2014 elections. This scandal gained a larger proportion scale when the Republic of Srpska police officials burst and stormed by force the Klix.ba (local web site) premises searching for this video recording, which at the end caused the disgust and public condemning.

Secretly recorded conversation between Milorad Dodik, former President of the Republic of Srpska and Mate Djakovic, a local journalist (recordings were released during the time of investigation directed against Dodik due to “Pavlovic Bank” affair), led to dismissal of Goran Salihovic, who, at the time, was chief prosecutor of the Prosecutors Office of BiH and whose name appeared in this process in rather compromising context as well.

A few months ago, a conflict within Party of Democratic Action (SDA) between several official resulted in an affair titled “Asim”, where Asim Sarajlic, one of the highly ranked official of this party and member of state parliament was secretly recorded in a motor vehicle by his party colleagues. Audio recording revealed but thorough and detailed mechanisms of genuine criminal, corruption, clientelism, non – democratic foundations that seemed to represent basic premises upon which a leading Bosniak national party seem to be operating. Apparently, local Cantonal Prosecutors Office followed media as far as this affair is concerned. However, the investigation was doom to failure: namely the recording of Mr. Sarajlic was conducted secretly and thus must be treated as illegal deed, that is, it was completely against the law and legal procedure.

This journalist has recently released the audio recording with Oleg Cavka, a state prosecutor having conversation with Muhamed Ajanovic, Dean of the Faculty of Dental Medicine. Oleg Cavka has publicly been considered as non – institutional grey eminence in judiciary system. The recording did not appear in protected area of their offices or in a hotel room, instead the two of them were having conversation in public space, namely a local coffee shop, while having a chat about public jobs (including the overhearing of one of them), rather than talking about formal issues. Milan Tegeltija, president of the High Judiciary and Prosecutors Council in BiH told media representatives that this particular audio recording was illegal and could have been a subject to counter indictment. Tegeltija’s “hint” has very quickly been decoded with the Prosecutors’ Office of BiH where the investigation of this “case” had been launched. Throgh social media sources, Tegeltija directed this journalist to Criminal Law of the Federation of BiH where illegal recording is treated as criminal deed.

Article 188 of the Criminal Law of the Federation of BiH clearly states that:

  “If a person conducts special operations, including the overhearing without other party’s consent or if she\he makes audio recording of a conversation or records a statement that has not been directed to her | him and allows an unwanted person to have access to recorded material or statement provided by a person that had illegally been overheard or whose conversation was audio recorded, including the saving of other email messages, she \ he will be fined or sentenced to prison with an up to three years penalty”.

Of course, this journalist was aware of what the legal boundaries were and what its conservative interpretation may present him with, including legal fines defined for violation of law provisions as well.

However and luckily there is a law institution superior to local judiciary system and whose verdicts must be obeyed by local and domestic judiciary system. Namely, we are refereeing to European Court of Human Rights with head seat in Strasbourg and whose competence and superiority was accepted by Bosnia and Herzegovina with its membership within Council fo Europe. Judiciary practice of European Court of Human Rights has recently been loaded with cases concerning media responsibility with their local courts considering these cases as “violation of privacy” of public figures by using secretly recorded conversations or video materials too. It is however well known that parties turn to ECHR, after having exhausted all legal possibilities with local judiciary framework and court instances within their own countries. ECHR judges evaluate, estimate and bring verdicts regarding weather subject states had violated rights and guaranties defined by the European Convention of Human Rights. This convention is constituent part of the Constitution of BiH, based on Dayton Peace Agreement

Public interest and other “minor issues”

One of so-called paradigm – tile cases related to our discussion and led by the ECHR was the case titled “Haldmann Vs Switzerland”. In 2003, four investigative reporters from Switzerland used secret cameras to record a documentary movie regarding malversations of persons that had been selling life insurance policies. After one of the recorded persons decided to sue journalists and their editing office, the Swiss court decided to fine journalists due to unauthorized video recording and broadcasting the conversation with the prosecutor. 

In 2015, European Court of Human Rights cancelled the verdict of Swiss court against the four journalists claiming that “the theme of the documentary made by the four journalists was of public interest and that the report contributed in public discussion”. The verdict defined that the “ECHR had determined the presumption that the claimers (journalists) made a documentary in good faith with the purpose of respecting and obeying journalists’ ethic and journalism laws, referring to their limitations of the use of hidden and secret recordings”

ECHR verdict also determined that “criminal verdict against journalists due to usage of hidden cameras aimed to detect misused actions in the branch of insurance was the question of public interest and that such verdict had violated the right of freedom of expression in this sense”, including the fact that the violation of privacy of insurance officials in their offices “was not sufficient enough to overrule public interests”.

Was there any issue in all Bosnian cases listed in this article, in terms of questions that should have been treated as public interest issues and were media representatives that had been collecting hidden recordings (in affairs such as “Two Geezers”, “Goran Salihović“, “Calking”, “Asim”, “Ajanović and Čavka”…) violating the law or were they simply doing this in order to please public interests?

Instead of answering this question (despite the fact that the answer is well known and undoubted) let us conclude that in this cases there is a confrontation of two permanently counter principles: on one hand there is a governing principle at any level or stage; a governing principle aimed to protect its non – transparency, criminal, corruption and on the other hand, there is a public principle that uses media as their instrument requiring that everything that may be considered as public interest must be available to general public, visible and classified, even if the information are gained in an “unfair” manner and way.  It is clear and obvious that these two principles shall never get “close to each other” on voluntary basis, as well as the fact that their combat is unequal as long as there are repressive mechanisms and tools used by the governing official authorities and those that act and operate on their behalf, bring decisions and verdicts. “There can be no state without public”, claimed scientific and social public, and public interest is, as we can see from the quoted verdict by the ECHR, subordinately superior to any particular interest, including state interest, especially its interest is a violation of human rights of their own citizens.

Media has for a longer period of time (both in scientific and legal cycles) been treated as the fourth pillar of governance, along with parliamentary judiciary and executive governance. According to few cases listed above, it becomes clear that they are being denied their rights by using all legal, illegal and repressive means in Bosnia and Herzegovina.

(The author is editor in chief of “Slobodna Bosna”; this article has been published in the 76th issue of E-journalist bulletin, within the JUFREX project and with the support of Council of Europe)

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