Report of Short-Term Expert as per USAID JSDP II Year 4 Work Plan Section 3.2.4: Identifying Individuals Involved in Criminal Proceedings: Balancing Transparency and the Protection of Private Life

In May 2013, a short-term expert was invited to participate in two seminars for prosecutors and judges to discuss the issue of publicly identifying individuals involved in criminal proceedings, taking into account data protection considerations. The seminars were held in Sarajevo and Banja Luka, with a total of around 80 participants. The expert's input focused on explaining how European legal instruments achieve a balance between openness and privacy protection, using judgments of the European Court of Human Rights as illustrations. The expert's argument was that the European Convention on Human Rights requires a balance to be struck between the right to a fair trial, the right to freedom of expression, and the right to private life. The seminars featured presentations by representatives of the High Judicial and Prosecutorial Council, the Personal Data Protection Agency, and the Ombudsman, who oversees the Freedom of Access to Information Act. A creative tension arose between the representatives of the Agency and the Ombudsman, with one defending the right to private life and the other advocating for openness. Following the seminars, the expert noted that there was a great deal of uncertainty about the precise effect of the legislative framework governing the relevant decisions. The findings of the Agency seemed to suggest that individuals must never be identified and steps must always be taken to anonymize court reports. However, the Agency representative suggested that the position was not clear-cut, and that there was scope for identification. The expert's approach was to explain the European legal instruments and their application, rather than to challenge the findings of the Agency. The expert's intention was to show that the relevant European legal instruments do not prohibit identification, but rather require a balancing exercise between the conflicting rights. The seminars generated a wider discussion, and there was no need to discuss the prepared questions. The expert's input was well-received, and the seminars provided a platform for exploring the complex issues surrounding the identification of individuals involved in criminal proceedings. The data protection law in Bosnia and Herzegovina is based on the European Convention on Human Rights and the Council of Europe Data Protection Convention. The law requires a balance to be struck between the right to private life and the right to a fair trial. The Personal Data Protection Agency is responsible for overseeing the data protection law, and its findings suggest that individuals must never be identified and steps must always be taken to anonymize court reports. The European Court of Human Rights has issued judgments that illustrate the balancing mechanism required by the European Convention on Human Rights. The court has recognized the importance of protecting personal data, but has also emphasized the need for transparency and accountability in the administration of justice. The seminars highlighted the need for a more nuanced approach to data protection in Bosnia and Herzegovina. The expert's input provided a framework for understanding the European legal instruments and their application, and the seminars generated a wider discussion about the complex issues surrounding the identification of individuals involved in criminal proceedings. The Justice Sector Development Project II aims to contribute to the development of a transparent and accountable justice system in Bosnia and Herzegovina. The project's work on data protection and the identification of individuals involved in criminal proceedings is critical to achieving this goal.