Stefan Mačkić, freelance journalist,
--------------------------, 78 000 Banja Luka,
Republic of Srpska, Bosnia and Herzegovina,
e-mail: stefanmackic@protonmail.ch, phone: +387 65 494 314,
web: http://stefanmackic.wordpress.com
Office of the Prosecutor Access Focal Point,
Mechanism for International Criminal Tribunals,
via e-mail: mict-otpthehague@un.org, nabti@un.org
SUBJECT:
Re:

Request for Review of the Decision to Deny Access to Records
March 21st, 2018 Decision by the OTP AFP
To Whom It May Concern,

Pursuant to the Access Policy for the Records Held by the Mechanism for
International Criminal Tribunals (hereafter: MICT/17) and Article 19 of the
International Covenant on Civil and Political Lights (hereafter: the ICCPR), in light of
§ 63(b) of the Report of the Special Rapporteur on the promotion and protection of
the right to freedom of opinion and expression Nr. A/72/350 (hereafter: the Special
Rapporteur’s Report), I submit this
REQUEST FOR REVIEW
of the March 21st, 2018 decision by the Office of the Prosecutor Access Focal Point
(hereafter: the OTP AFP) to deny my March 18 th, 2018 request for access to records
held by the Mechanism for International Criminal Tribunals (hereafter: the MICT).
Explanation
Invoking the legal acts from the introduction, on March 18 th, 2018 I
submitted to the OTP AFP a Request for Access to Records held by the MICT regarding
the following documents: the order, or any other act, with which the war-crimes
investigation of Alija Izetbegović was initiated before the ICTY; the latest available
version of the indictment against Alija Izetbegović, be it a draft or not, and regardless
of whether it was confirmed or examined by a judge; and the order, or any other act,
with which the aforementioned investigation of Alija Izetbegović was stopped upon his
death (hereafter: the Request). On March 21 st, 2018 a decision was rendered by Najwa
Nabti of the OTP AFP to deny the Request because “[t]he documents you have
requested--should they exist and be in the MICT’s possession--would be exempt from
disclosure pursuant to Article 10(d), (e) and (g) of the MICT Access Policy” (hereafter:
the Decision). I was also advised that “[t]he Access Policy provides for the opportunity
to review this decision under Article 13.”
The Decision is improper and ungrounded, as follows.
It is prescribed in Article 7 of the MICT/17 that “[t]he overall approach to
the provision of access to the records and information managed by the Mechanism is
based on the principle that the work of the Mechanism shall be open and transparent,
except where the nature of the records and information concerned is deemed
classified” and that, “[i]n determining access, the general principles of openness and
transparency shall be balanced with the obligation to maintain the confidentiality of
classified records and information, in the interest of preventing harm or damage to
the United Nations or harm, damage or violations of privacy to individuals.”
It is implicit in the aforementioned principles of openness and transparency
that any denial of access must be properly explained, which is also corroborated by
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 Article 11(5)(b) of the MICT/17. Such explanation has not been provided and the mere
invocation of certain general provisions does not satisfy said requirement, either.
Furthermore, the first provision invoked, Article 10(3)(d) of the MICT/17,
does indeed envision that the information “covered by legal privilege or related to
internal investigations, including judicial records classified by the submitting party or
by order or decision of Chambers as ‘confidential’ or ‘strictly confidential’ and all
information related to the deliberations of Chambers, as well as the records and
information of the OTP which, if disclosed without appropriate authorization, would
jeopardize investigations or prosecutions” shall be exempted, but it is not explained in
the Decision how the information sought fits any of these criteria. The Request
concerns the (prosecutorial or judicial) orders initiating and stopping an investigation,
and a version of the indictment, none of which represents communication between a
lawyer and their client, hence it is not protected by “legal privilege”; the information
sough does not relate to “the deliberations of Chambers,” especially since there was
no deliberations in this case; the relevant investigative process was halted when the
suspect died, hence the disclosure cannot “jeopardize investigations or prosecutions”;
and it is not explained in the Decision neither when, nor by whom, nor on what legal
grounds have the information been marked as “confidential” or “strictly confidential.”
I was also not informed on how to request the declassification of those records, if they
are indeed classified, which the MICT/17 does allow for.
Similarly, the second provision invoked, Article 10(3)(e) of the MICT/17,
does provide that “[i]nternal inter-office or intra-office documents, including draft
documents” should be exempted — only the second item requested might fall into this
category — but such exemption can only be made “if disclosure would undermine the
Mechanism’s free and independent decision-making process.” Before a request is
denied, it obviously has to be proven that the disclosure of information sought would
undermine said process, yet the Decision lacks any substantiation thereto whatsoever.
Finally, the third provision invoked, Article 10(3)(g) of the MICT/17,
prescribes an exemption of “other kinds of records and information, which because of
their content or the circumstances of their creation or communication must be
deemed confidential”. However, the Decision fails here, as well, to explain how the
content of the information sought with the Request necessitates it to be considered
confidential, nor what circumstances of its creation or communication requires it be
designated as such.
It is especially concerning that the OTP AFP did not even establish whether
the information sought actually exists, which is certainly a prerequisite for the
determination of an exemption from disclosure. This makes the already severely
lacking justification of the denial purely speculative — the designated officer cannot
properly ascertain whether certain provisions of the MICT/17 apply to information
which they have not personally examined (if anything, it cannot be claimed that such
information is classified, as only information which already exists can be classified).
Not only is the Decision, for the reasons stated above, contrary to MICT/17,
it is also contrary to the ICCPR and it undermines the Special Rapporteur’s Report,
which establishes that the access policies of the United Nations bodies, which the
MICT is, should be aligned with that treaty. Article 19 of the ICCPR protects the right
of access to information and requires any limitation thereof to, first, be prescribed by
law, second, be envisioned by Article 19(3)(a) or (b) of the ICCPR, and, third, satisfy a
strict test of necessity and proportionality. The United Nations Human Rights
Committee has underlined that, even when a state party “invokes a legitimate ground
for restriction of freedom of expression, it must demonstrate in specific and
individualized fashion the precise nature of the threat, and the necessity and
proportionality of the specific action taken, in particular by establishing a direct and
immediate connection between the expression and the threat.” 1 The OTP AFP has not
shown in its Decision that any of these conditions for the limitation of the right of
access have been satisfied.
1

General Comment No. 34 (CCPR/C/GC/34, § 35), United Nations Human Rights Committee.
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 In addition to everything state above, it also has to be borne in mind that I
submitted the Request as a freelance journalist intent on informing the public on an
issue of significant public interest — the war-crimes investigation of a former, now
deceased head of state with a rich history of internal conflict. The purpose of
establishing the International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the Territory of
the Former Yugoslavia since 1991, the continuation of which is the MICT, was, among
else, to reconcile those internal conflicts by bringing truth to light. The free flow of
information and the open dialogue which it generates and facilitates, and which is
impossible without it, is instrumental in achieving reconciliation. Despite that, the free
flow information of public interest was hindered by the Decision.
For all the reasons stated herein, I
propose
that this request for review be accepted, the Decision quashed and a new one — in line
with all the relevant laws and regulations described above — brought forth in its place,
and the information requested delivered to me in full.
Respectfully,
Submitter of the Request
Banja Luka, on March 22 , 2018,
nd

Stefan Mačkić, freelance journalist
Attachment:
• copy of the Decision, along with the Request.

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