ALAC Centre for legal aid in the fight against corruption

Transparency International Bosnia and Herzegovina

ALAC Story: We All Have Our Own Prisons

In January 2010 the Advocacy and Legal Advice Centre (hereinafter: Centre) of Transparency International BiH (hereinafter. TI BiH), received an anonymous letter requesting that we look into the alleged cases of corruption in the Correctional Facility Tuzla (hereinafter: CFT) committed under the auspices of the then director, Mr Hasan Hodi (hereinafter: H.H.).
The reports claimed that the director had taken bribes during the process of filling vacancies for prison warders. Two separate sources claimed that H.H. took KM 15,000 20,000 in bribes for each newly employed prison warder. The reports also claimed that H.H. reached the retirement age (the limit is 65 years of age), the fact that challenged the legitimacy of his managerial position. As concerns the employment status of the director of the CFT, the Administrative Inspectorate of the FMJ explained that the director was an official with a four-year (at that time active) term of office appointed by the Government of FBiH, which is solely responsible for his appointment and dismissal. In the subsequent notification sent by FMJ, we were informed that H.H. had been appointed director of the CFT by the Government of FBiH in 2008. The Law on Execution of Criminal Sanctions in FBiH provides that the directors and deputy directors of correctional facilities shall be appointed and dismissed, without public vacancy announcement, by the Government of the Federation of BiH, following the proposal made by the Federal i Minister . In the Centres opinion, the cited provision of the Law allows favoritism and utter lack of transparency in the selection of persons for the said positions. In our communication with the client, the client always implied that H.H. enjoyed a preferential status with the then Federal Minister of Justice, which is further confirmed by the nature of the cited provision of the Law. The CFT is a semi-open correctional institution with accommodation facilities for both male and female inmates. Of around 30 female inmates in the CFT, one had a unique, privileged status compared to others.

The Centre has sent its requests and enquiries to the Administrative Inspectorate of the Federal Ministry of Justice (hereinafter: FMJ), requesting that inspection be carried out and requirements for retirement be checked. Upon inspection, the Administrative Inspectorate of the FMJ found that the allegations were unfounded and that the new warders were employed in accordance with the proper procedure.

ALAC Centre for legal aid in the fight against corruption

Transparency International Bosnia and Herzegovina

According to an anonymous letter sent by a female inmate i which was published on cantonal web portals , H.H. was in an intimate relationship with a female inmate S.V., who was serving a ten-year sentence for aggravated murder. The immoral relationship in the Tuzla correctional facility allowed S.V. to have a preferential status in relation to other inmates and the director to exercise mobbing on the prison warders. The warders also sent letters to the editorial board of the i i Dnevni Avaz daily and through electronic media , with the aim of disclosing murky affairs. In their letters they state that it is the director who determines which warder will work at a particular place; and orders ... who they will search and who they must not even look at. They also report that H.H. and S.V. drank alcohol in the prison premises, which entails automatic disciplinary liability under the Law on Execution of Criminal Sanctions in the Federation of BiH. The Centre presented all this information to the Public Prosecutor's Office of the Tuzla Canton (hereinafter: PPO TC), requesting investigation of this case, and submitted all the relevant media sources and newspaper articles. No investigation was undertaken and we never got any feedback as to whether the media allegations had been investigated or not. In addition to sending the journalist information about the immoral conduct taking place in the prison, the Centre orientated itself, in a targeted fashion, to checking whether the PPO TC had issued orders to conduct investigation as per one of the reports sent by the newly-formed Anti-Corruption Commission of the Tuzla Canton Assembly (hereinafter: Commission) as well as the reports filed by all other persons for malfeasance in office, taking bribes, and mobbing. By sending parallel enquiries to the Commission, we found out that the Commission forwarded anonymous citizens report against the director of CFT to the PPO TC, without conducting monitoring, exerting institutional pressure or seeking further cooperation with TI BiH with the aim of collecting material that might help in the investigation of the allegations contained in the report. In truth, the Assembly did contact the FMJ twice as well as PPO TC once seeking feedback regarding the forwarded report, but without success, which suggests that the inter-institutional cooperation and the mutual assistance in common matters is not satisfactory. At the Centres request, the Prosecutors Office submitted only partial information regarding the number and a brief description of the established cases against H.H. in eight separate reports, which largely belong to the criminal offence of malfeasance in office and abuse of power. In seven cases the same order was issued cancelling investigation due to the lack of evidence that H.H. had committed a criminal offence.

The reason why we were not sent the official orders cancelling investigation was explained by the Deputy Chief Prosecutor in the first-instance Ruling: the orders are internal prosecutorial documents and, quote: The Prosecutors Office is under no obligation, either by virtue of the provisions of the Freedom of Access to Information Act or the provisions of any 1 other law, to submit information to the claimant . TI BiH responded to this statement by filing an appeal in administrative proceedings, noting that there is no legal provision allowing the Prosecutors Office to deny disclosure of official orders just on the basis of ones arbitrary decision that they constitute internal documents. Throughout the entire correspondence with the judicial institutions of the Tuzla Canton there was a distinct impression that these institutions act protectively towards the director of the CFT, which confirmed all doubts, opinions and attitudes of anonymous complainants and victims in the CFT. After we lodged the appeal against the first-instance ruling
of the PPO TC, the Chief Cantonal Prosecutor admitted the legal relevance of the FoIA of FBiH which gave him a legal basis for declaring the requested information exempt from disclosure. Such a decision demonstrates that the Law was practically used for the purpose of denying access to the information that could have a decisive role in challenging the legitimacy of the official orders by TI BiH. The Prosecutor explained that the disclosure of the official orders might jeopardize the legitimate interests of the Federation BiH, by threatening potential investigations in the future or the passing of (with an ironic tone) possibly different decisions by the PPO TC.

The PPO TC did not recognize the role of the ALAC Centre as a bridge between citizens and institutions and did not want to transparently send official orders that are by default considered public documents, but rather continued to protect the position of H.H. in the second-instance decision as well. Upon rejection of its appeal, TI BiH filed a charge in an administrative suit, coming across yet another legal obstacle created by the judge of the Cantonal Court in Tuzla, who questioned the legal qualification of the charge, arguing that no violation of any TI BiHs right or personal interest stemming from the Law had occurred. From the legal point of view, in her ruling the judge challenged the entire administrative suit in the first and the second instance. Objectively, the judiciary has once again proved to be absolutely disrespectful of the new generation of laws, such as the Freedom of Access to Information Act.

ALAC Centre for legal aid in the fight against corruption

Transparency International Bosnia and Herzegovina

In the spirit of consistent advocacy, TI BiH resorted to an extraordinary legal remedy, i.e. request for review of the court ruling, which is to be decided in the coming period by the Supreme Court of the Federation of BiH. By exerting institutional pressure and demonstrating legal
perseverance, the Centre managed to achieve a positive outcome in the case of the Correctional Facility Tuzla. It happened in the form of the notification sent by the Assistant Minister for the execution of criminal sanctions in the FMJ BiH stating that Hasan Hodi had been dismissed during a regular session of the FBiH Government because he had reached 65 years of age, before the expiry of his regular term of office. Attached to the notification was also an excerpt from the Official Gazette of the FBiH, before official publication. Subsequently, the transcripts from the Government session were also delivered.

Sources:
i

Article 123 of the Law on Execution of Criminal Sanctions in the Federation of BiH (Official Gazette of the Federation of BiH, Nos. 44/98, 42/99 and 12/09)

www.tuzlalive.ba, www.depo.ba, www.busovaca.net/busovaca-vijesti-net/38-busovacazanimljivo/79-sex-afera-u-enskom-zatvoru-sanja-vuletaneformalna-kraljica-zahvaljujui-vezi-s-direktorom Dnevni Avaz, 25 January 2011, title: A Group of Warders Complaining against Director Hodis Work www.tuzlalive.ba anonymous letter: A Group of Honourable Prison Warders
i i i

First-instance ruling of the Public Prosecutors Office of the Tuzla Canton

Our initial contact in the CFT case wrote: I have already

said that I do not believe in the rule of law, and I was ready to give up, but you really bring hope and enthusiasm. The contact acted as our whistleblower for the entire duration of this case. During his correspondence with the Centre (which lasted for a year and a half) he stated that he had to remain anonymous because he could otherwise lose his job, adding that because of his insider position he had experienced various threats and instances of mobbing in the CFT on a number of occasions.

The client and TI BiH both believe that H.H. should be held accountable for all the aforementioned situations warranting investigation. TI BiH has neither the intention nor the desire to act against the legitimate objectives of the Federation of BiH (contrary to what the Chief Prosecutor of the Tuzla Canton thinks), but rightly believes that Hasan Hodi and his omnipresent protectors in the judiciary should be subjected to a transparent and public process of the disclosure of all criminal and disciplinary elements by relevant institutions that are politically impartial and willing to do so. For now, it remains to be seen whether the Supreme Court
of the Federation of BiH will be objective in its decision-making or not. This case is one of thousands cases processed by Advocacy and Legal Advice Center of Transparency International Bosnia and Herzegovina.

www.ti-bih.org