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RS Ministry Of Transport Withholds Information Despite The Verdict

Despite the judgments of the Banja Luka District Court, the Ministry of Transport and Communications of the Republika Srpska refuses to submit a copy of the concession contract for the construction of the motorway between Banjaluka and Prijedor.

The Banja Luka District Court ruled in favor of the Center for Investigative Journalism (CIN), the Center for the Environment, and Transparency International Bosnia and Herzegovina (TIBiH) after the Ministry of Transport and Communications of the Republika Srpska (RS) refused to provide them with a copy of the Concession Agreement for Construction of Banjaluka – Prijedor Motorway.

However, despite the judgments from July, October, and November 2022, the Ministry again refused to share with the public the contract awarded to the company SDHS-CSI BH. This company is registered as a representative office of the Chinese company China Shandong International Economic and Technical Cooperation Group.

In late 2021, the above organizations requested this document from the Ministry under the RS Freedom of Access to Information Act, invoking the public interest, but the Ministry claimed they could not allow access to it due to the commercial interests of the Chinese company, without implementing the compulsory public interest test to determine whether the release of information is necessary and justified or not.

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CIN, TIBiH, and the Center for the Environment sued the Ministry for violating the law and hiding a document, which is a public good, and in all three cases, the Court found that the decline was unlawful, indicating that it is the information of which the public needs to be informed.

According to the judgments, the decisions of the Ministry were not based on the law, but on the need of the Ministry to put itself in the service of protecting concessionaires. The judgments also recalled the basic principles of the Law on Concessions – transparency, market competition, and equal treatment for everyone.

“Confidentiality of commercial data, i.e. the protection of commercial interests, is nevertheless assessed by the authority in possession of the requested information, not the third party to whom the requested information refers”, held the Court, reminding that public authority is required to conduct a public interest test.

However, despite the rulings, the Ministry once again refused to deliver a copy of the concession contract to the organizations. The reasoning signed by Minister Nedeljko Čubrilović says that the requested document contains ‘confidential commercial information’ the disclosure of which would harm the Ministry and could have a negative impact on future investors.

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“Disclosure of the contract is not in the public interest, as it would violate the provisions of the contract, which would lead to legal disputes between the contracting parties,” says the Ministry’s decision.

The court, however, held that such reasoning was unfounded because it was not explained what kind of damage the disclosure could cause.

“It is important to note that the defendant – in this case, the Ministry of Transport and Communications – could have obscured all information concerning the company with which the contract was signed that is not public. But instead of doing this, they completely ignored the Court’s verdict”, says Sonja Kosanović from the Center for the Environment.

In addition, with the new decisions, the Ministry repeated another omission.

“The Ministry denied access without conducting a public interest test first, as stated in the Court ruling”, says Ena Kljajić Grgić from TIBiH.

Due to the neglect of court decisions and reasoning, TIBiH and the Environmental Protection Center sued the Ministry for the second time.

“The contract with the company SDHS was not concluded through a public call, but through a negotiation process. This could be the reason why the Ministry tried in every way possible to prevent access to the requested contract”, concludes Kljajić Grgić from TIBIH.

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