Struggle for access to documents bears fruit after 11 years: Guest blogger Staffan Dahllöf, co-editor of transparency website Wobbing.eu, sums up the IFAW case.
German chancellor Gerhard Schröder asked EU-Commission to help build an airport runway in an environmental protected area outside Hamburg. Commission president Romano Prodi reacted “RAPIDAMENTE”, we know now.
Chancellor Schröder wrote in a letter to Commission president Prodi:
”I would be extraordinarily grateful if you personally could make sure that there is no legal objection issued from the Commission.”
The German leader was afraid the Commission would object to the building of a runway to an airplane factory in an area called Mühlenberger Loch. The area was protected by EU-rules for the conservation of wild fauna and flora.
Gerhard Schröder wanted to make sure the construction work could go ahead in spite of the protection. More than 4000 jobs are stake, only in the Hamburg region, Schröder wrote to Prodi.
On the letter from Schröder Prodi made a handwritten note in block letters: ”RAPIDAMENTE” (quickly) before passing the request on to his aids. (For a scanned copy of the letter, see Wobbing).
No national veto
The reason we now have access to the correspondence is a lengthy battle for transparency finally won in the European Court of Justice.
After more than eleven years a requested document was forwarded to the German organisation Internationaler Tierschutz-Fonds, an affiliation to the organisation IFAW (International Fund for Animal Welfare).
Scott Crosby, a lawyer representing the German NGO during the process, regards the final outcome of the IFAW-case as an important landmark.
”Member states do not have a right to veto disclosure of documents sent to the EU-institutions,” Crosby told participants at the conference Dataharvets+ in Brussels in the beginning of May.
Appealed to high level
The IFAW-case actually consists of two parts. First there was the legal battle to dismiss the argument that Germany could tell EU-institutions how to handle German documents.
At first the General Court (at the time the Court of First Instance) decided according to the German demands. This judgement was then appealed by Sweden, supported by Finland leading to a reverse decision by Court of Justice in 2008.
Member States ”may request” that their documents are not disclosed, but they do not have ”a general and unconditional right of veto”, the judges made clear.
Then came a second round.
To protect German policy
Germany and the Commission still did not want to reveal the lobbying letter, arguing the content should be hidden to protect ”the economic policy of the Community or a Member State”, a reason to refuse disclosure laid down in the access rules for EU-institution (Regulation 1049/2001, article 4.1 a third indent).
This argument was first accepted by the General Court, but then appealed and later set aside by the Court of Justice
The reason why?
The General Court had not itself read the disputed document!
The lower chamber was therefor ”not in a position to assess in the specific case whether access to the document could validly be refused”, the higher instance dryly remarked.
Operation succesful, the patient died
Then did the German NGO finally get the requested document? Yes they did, some one and a half year later. Things have a tendency to take time in matters like this.
All in all, transparency won and the attempt to hide Gerhard Schröder’s pressure letter failed.
Only catch is that the process took eleven years.
The controversial runway was built in the mean time.
Neither Gerhard Schröder nor Romano Prodi holds their official positions any longer.
The documents of the Court can be found here.
All 13 Danish MEPs will vote to prevent an MEP candidate from becoming new EU Ombudsman in two weeks. Former Danish Ombudsman Hans Gammeltoft-Hansen joins choir of critics.
Each of the 13 Danish MEPs will vote to prevent an MEP from winning the election for new EU Ombudsman next plenary.
The Danish MEPs fear that the institution will lose trust among citizens as well as journalists, if a candidate goes directly from being an MEP to taking office as EU Ombudsman, writes Danish magazine Journalisten.
There are six candidates for the post. Three are MEPs. They are running against e.g. the Irish and the Dutch national Ombudsmen.
“It is a scandal,” says Danish Green MEP Margrete Auken.
“This is the same as if a long-serving member of the Danish Folketing was elected Ombudsman in Denmark. This would never ever happen,” she says to Journalisten.
Some of the Danish MEPs who are voting for independent candidates do have candidates from within their own political groups. This goes for the five Danish Social Democrats, the one Danish conservative, and the right-wing Morten Messerschmidt.
But neither will vote for their own group candidates.
“We think it is a good tradition that the Ombudsman is 100 percent independent,” says MEP Dan Jørgensen (S&D).
“It has to be a non-political institution. I do not really think you can accuse the political candidates of anything, but it is the wrong signal to send,” says MEP Bendt Bendtsen (EPP-ED).
All other Danish MEPs also vote for independent candidates, Journalisten writes.
“This is preposterous, and I cannot even understand how it came to this. To make the Ombudsman part of the political battle of seats is a total misunderstanding,” says MEP Morten Løkkegaard (ALDE).
The former Danish Ombudsman, Hans Gammeltoft-Hansen, has also voiced his concerns. On Danish Broadcasting’s P1, he said:
“I really hope that a majority in the European Parliament will choose a person, who appears independent – which is hard, not to say impossible, if you go straight from a long and heavy political career.”
On the other hand, many MEPs also defend the election of an MEP as Ombudsman. In a number of internal e-mails from Parliament, which Journalisten cites, the debate goes both ways.
Who else can be better qualified for this job to understand citizens’ concerns than a former parliamentarian?” writes MEP Doris Pack in one e-mail to colleagues.
“If MEPs cannot be an Ombudsman politicians shouldnt be Commissioners, High Reps or Presidents of the Council as they also deal with governments from different political families as well as issues derived from their sister political parties,” writes MEP Charles Tannock in another.
“Can privatization kill” asked Thomas Gammeltoft-Hansen in an op-ed in the New York Times last year. Gammeltoft-Hansen is a senior researcher at the Danish Institute for International Studies DIIS and tomorrow will present a book about the migration industry and the commercialisation of international migration.
A provocative question – particularly in times, where privatization is all over us from caretaking over education and even to security. Yet, aren’t provocative questions exactly what journalists and indeed academics should ask?
On today’s front page of the Euobserver is Luludja, a Bulgarian Roma woman migrated to France where she sells roses and her body to pay the debt to her traffickers. The story is documented by a team of journalists who did crossborder research from Germany, France and Bulgaria. They asked the obvious question about the illegal migration business, documenting heartbreakingly how Luludja’s hope to achieve a better situation for herself and her family was abused. The team observed the troubling problem of Roma migration in Europe and decided to not just observe but ask. They wanted to document. They fulfill their task in the chain of asking the right questions in a democratic system.
Gammeltoft-Hansen and his co-author Ninna Nyberg Sørensen – senior academics in the fields of law and sociology/anthropology – take the question one step further. They look into the systemic problems of migration business. Not only clandestine and illegal activity but the obvious too. Visible on state budgets and carried out in the name of democratic governments. “Migration has become big business, and international migration has become increasingly commercialized,” they write about their observations in the invitation to a seminar tomorrow. “Over the last few decades, a host of new commercial opportunities have emerged that capitalize both on the migrants’ desires to migrate and the struggle by governments to manage migration. From the rapid growth of specialized transportation and labour contracting companies, to multinational businesses managing detention centres or establishing border security, to the organized criminal networks profiting from human smuggling and trafficking.”
So now – what should be the next move? This is the provocative question into the so called European Public Sphere. How should Europe react to its serious problems? Some of the necessary questions have been asked and documented. Academic analysis allows to see a larger pattern. On the democratic to-do-list now are public debate and political action.
Is it the Nordics against the Southerners in the fight for more transparency in the EU? Is it old-fashioned bureaucracy against modern administration? Is it power structures against the citizens?
The fight for more transparency in the EU seems stuck after the Danish presidency gave up on finding a solution for new access to documents rules, among connoisseurs known as 1049/01.
Finnish MEP Anneli Jäätteenmäki in a comment on Wobbing.eu sums it up like this:
The Danish Presidency lacked a real political will to push the revision forward this spring. It was not the Presidency’s political priority at all.
The Commission kept its negative attitude in the negotiations. It was not willing to try to find real compromises. It did not move even one centimeter forward in the negotiations. Instead, it was just requiring more restrictions and exceptions.
The European Parliament negotiating team lead by Rapporteur Michael Cashman was working hard in order to find an agreement. It was ready to compromise but not to take steps backwards in the name of transparency.
Jäätteenmäki argues, that after the collapse of the negotiations under the Danish presidency, the European Parliament should go ahead with an initiative and introduce more openness on the lawmaking procedure. She suggests making public all votes in the committees and plenaries, making public the minutes of the coordinators meetings, and making public the documents from the trialogue meetings.
These are excellent first steps – but aren’t they self-evident in a modern democracy? Good wind, as the wish goes in a sailing nation like Denmark, to the suggestions of Ms. Jäätteenmäki!
This would be a big step in the proactive openness within the EU. However it does not solve the problem of the stranded 1049 reform lingering in legislative nowhere-land. And it does not solve the obstacles or even obstructions to transparency, that journalists and citizens experience on an every day level: access to documents requests that are not answered, access to documents requests that are delayed and delayed again, access to documents requests where existing documents allegedly are not available. This combined with a comparably slow and potentially costly procedure to complain must discourage most of the citizens and many of the time-pressured journalists.
In whose interest?
“Citizens deserve better” writes Jäätteenmäki in her open letter. And in May 2012 two other Nordics, the ministers of Justice of Sweden and Finland, appealed to find “True Friends of Transparency” in another open letter published at Wobbing.eu.
So this must be the time to start over again. Citizens do indeed deserve better. Time to start from scratch with a bill that fulfils the Lisbon Treaty’s requirement for more transparency, includes best practice from open countries such as the Nordics and the United Kingdom, includes experience from those, who actually use the legislation on behalf of the citizens and in favour of transparency such as NGOs, lawyers and journalists.
We are, of course, looking forward to the European Parliament to improve its own practices. But we – the journalists on behalf of our readers, listeners and viewers – also hope for the European Parliament to call upon the Commission to write up a new, acceptable draft for the reform of 1049/01 and from the very beginning of the procedure to include the relevant users of the law.
In the meantime – and in the future – the task is also with the citizens and the journalists on their behalf. Because transparency belongs to us all. It’s not citizens against bureaucrats. It’s about taking care of our democracy: Transparency is a task for all of us!
The final volume of the trilogy In the Name of the State was published on 19 April 2012. Entitled ‘Prikrivanje’, Cover-up, it deals with the abuse of political and legal power of leading Slovene politicians around the time when the country gained its independence. Today’s guest blog by Rafael Njotea of Journalismfund.eu
Journalists Matej Šurc and Blaž Zgaga spent more than three years investigating and analysing more than 6000 pages of declassified official documents on the trade of arms in Slovenia during the Yugoslav Wars. They obtained the documents through the Slovene Freedom of Information Act. Journalists from six other countries cooperated in cross-border investigation. The research was co-financed by a Journalismfund.eu research grant.
The findings of the investigation are chronicled in the trilogy In the Name of the State, of which the last volume has now been completed. The first volume, published in June 2011, focused on the sale of arms and ammunition from the former Yugoslav People’s Army’s warehouses, which were seized during a ten-day military conflict in Slovenia in 1991. It was called ‘Odprodaja’ or Sell. The second volume, ‘Preprodaja’ or Resell, appeared in October 2011 and dealt with the purchase of arms abroad and subsequent resale to Croatia and Bosnia and Herzegovina during the UN arms embargo.
The third and final volume, ‘Prikrivanje’ or Cover-up, describes how the arms smugglers managed to keep their activities largely concealed for the last twenty years. It starts by bringing to light the conflicts between the Ministry of Defense and the Ministry of Interior after the Brnik scandal, in which 460 tons of arms, designated for resale in Bosnia and Herzegovina, arrived to Slovenia only to be stored at Brnik airport for months due to problems with the intended resale. Afterwards, the book examines the three parliamentary inquiries on the arms trades that were initiated over the years and the intrigues and obstacles that politicians put up to thwart them. The last of these parliamentary inquiries was triggered by the biggest arms deal in the history of Slovenia – a 278 million EUR purchase of the Finnish armoured vehicles Patria that was concluded in 2006. The Patria case is under investigation in Finland, Austria and Slovenia. Two dozens of suspects are on trial for bribery and industrial espionage, one of them being the former and current Prime Minister of Slovenia, former chairperson of the Council of the European Union in the first half of 2008.
With the publication of this third volume of the trilogy, the research project has reached its final stages as one of the most significant investigations in Slovene history. It uncovered some of the country’s hidden chapters had been kept under veil the past two decades.
Read about the previous books in the series and reactions to them here.
More than 130.000 people were killed during Yugoslav wars in the 1990ies. On the other side millions dollars of war profits have been earned with sending thousands tons of weapons and ammunition to the battlefields.
Last week the second book of the trilogy In the Name of the State was launched in the Slovene capital Ljubljana. It is called Resell and documents how the UN embargo against weapon sales during the Yugoslav wars was broken. The authors found leads to countries like Bulgaria, Poland, Ukraine, Romania and Russia as export countries, logistic headquarters in the Austrian capital Vienna, financial transactions via a Hungarian bank and transfers via off-shore haven Panama. Also the United Kingdom sent military equipment to then Yugoslav republics and provided loans for arms purchases, as did Germany, the authors found based upon studies of thousands of declassified documents and cooperation with journalists in several countries. The access was obtained through the Slovene freedom of information act.
It is a widely accepted theory that Balkan nations are responsible for the bloody disintegration of the Yugoslav federation. But evidence presented in the books indicates that some European countries may have been actively involved in the wars with supplying arms and ammunition to the warring parties. The books describe in detail and based upon port reports, cables, receipts and various other official documents the routes of the weapons and the money.
More than a dozen of ships loaded with contraband arms secretly arrived to the Slovene port of Koper in 1991 and 1992, where they were unloaded and cargo was quickly forwarded to battlefields in Croatia and Bosnia Herzegovina. Military and civil intelligence services appear to have been involved in the clandestine operations according to signed and stamped documents, cables and orders obtained by the team. Also Italian, Albanian and Russian Mafia seem to be linked to some actions.
Along with his colleague Matej Šurc, Slovene journalist Blaz Zgaga spent more than three years investigating and analysing thousands of declassified official documents, that were obtained through the Slovene Freedom of Information Act. Journalists from six other countries cooperated in cross-border investigation.
The work already has lead to the award of the special investigative journalism diploma by the CEI SEEMO Award to the Zgaga-Šurc team.
In the trilogy of books the team meticulously describes the routes of smuggling and money transfers [Link to journalismfund article] as found in the released documents. During the recent Global Investigative Journalism Conference in Kiev Zgaga provided further insights into research method and findings, many of which lead to other countries and invite to further research in those countries.
The first strategically important shipment arrived to Slovenia from Bulgaria in June 1991, only a week before the first military clashes in former Yugoslavia. The Danish vessel according to the information obtained appears to have been loaded with five thousand assault rifles, millions of rounds of ammunition, and the most important, anti-aircraft and anti-armour missiles, worth 7,8 million German marks. The shipper according to the documents obtained was Bulgarian and the middlemen an Austrian company. Almost simultaneously a British company sent modern military radio stations with encryption capabilities to Slovenia in a deal worth five million pounds, the team of journalists found.
After this success a main arms dealer stepped forward in the summer of 1991. The Greek citizen appears to have used a company registered in Panama with offices at Vienna airport as one of the main channels for smuggling arms to Yugoslav fronts. Debit-credit notes of a bank account opened at a bank in Budapest reveal the company received more than eighty million dollars revenues from Slovene, Croatian and Bosnian customers, according to the authors of the book.
The authors obtained documents that further link the arms trade during the embargo to a Polish state owned company, including the code name of the contact person and the alleged amounts of the transfers that indicate a Polish port as starting point for ex-Soviet army ammunition supplies’ journey to the Adriatic Sea.
The tale of the documents continues to focus on shipments from a Ukrainian port. The declassified documents reveal that the first two shipments passed through the Slovene port of Koper. The ship made two journeys and sailed 96 containers with arms in October and November 1992. All were transported to Croatia by roads. Debit-credit notes confirmed that 60 million dollars were paid by Croatian customers for arms obtained through this channel, and that about 40 millions dollars has been transferred further to sellers of arms.
The last ship of eight was halted by the NATO fleet in Adriatic in 1994, then a trial in Italian city of Turin followed, but all were later acquitted at the court. The obtained documents show that the person, whom the Turin prosecutor assumed to be the leader of the group, sold hundreds of Russian anti-aircraft and anti-armour missiles worth 33,3 million dollars to Slovenia in 1991 and 1992. He offered even modern mobile anti-aircraft system SA-8 Gecko in January 1992, but this deal was cancelled. Several other Russian connections surfaced in the documents.
The first book in the trilogy was published by the Sanje publishing house in June 2011, the 2nd last week and the last will be published in the winter.
The book has been widely debated in Slovene media, where arms deals also surfaced on the political agenda involving the then prime minister as late as 2009.
A selection of the Slovene media picking up the story:
Also EU-applicant neighbouring countries there was significant media coverage, including reports about new revelations in EU-candidate countries. Read more on the website of Journalismfund.eu.
London based journalist Annamarie Cumiskey was so enthused about a meeting with young Spanish data journalists at a recent seminar, that she offered a guest contribution to the Watchdog Blog. Here it comes.
In the past three weeks I have been a victim of theft three times in three different cities. My home was burgled in London; my bank account was hacked into in Kiev and a man behind a deli counter in Madrid ripped-me off over some ham and cheese. The ham and cheese was the last straw.
While on a visit to Madrid to promote data driven journalism I happened to buy some fine Spanish ham and cheese to take home. The man behind the deli counter wanted €34 and I handed it over not knowing how to complain in Spanish. The receipt was not transparent; the items were not broken down properly. €34 for a few slices of ham and cheese and a dodgy receipt, as far as I could see, translated into a rip-off.
Armed with the receipt I complained to my hotel receptionist, who complained to the municpal police, who duly turned up at the shop, where the deli man’s face turned pale and made him give me back my money. In Spain it’s against the law to give someone an ambiguous receipt. They take transparency seriously in Spain.
So why does Spain not have a Freedom of Information Act? It’s the only country in the EU with a population over 1m that has no FOI. These days FOI is seen as a human right one that should sit alongside free speech in a modern European democracy. It should even be made one of the conditions of EU membership.
In the run up to November’s election both main parties have promised to introduce FOI if elected. But, why has it taken so long? Like the man behind the deli counter are Spanish politicians afraid of being found out?
There’s a willing “police” to make sure any FOI law is respected – a group of data driven journalists and FOI campaigners championed by Pro Bono Publico and Access-Info Europe. The next time I want to buy some ham and cheese in Spain I’m taking them with me.
These are the organisors of the seminar:
Pro Bono Publico promotes FOI and data driven journalism in Madrid
Access-Info Europe supports FOI campaign in Spain
As more and more EU member states introduce electronic payment systems for public transport, Dutch police investigates a journalist on suspicions of fraud after showing weakness in the security of the Dutch system.
Read article by guest blogger Staffan Dahllöf:
A Dutch journalist, Brenno de Winter, showed on TV how easy it is to cheat a new electronic payment system for public transport. The prosecutor took up the case – in order to decide whether the journalist should be prosecuted for fraud.
Mary Hallebeek, press officer at the prosecutor’s office in Utrecht describes the case as delicate:
”The journalist did this to show that the system doesn’t function well, and he had been telling this in different publications before. We are aware of that he had a journalistic purpose, and the purpose of an act should be considered according to Dutch law,” she told Wobbing.eu.
Ms Hallebeek says that the investigation was triggered by a notification to the prosecutors office by Trans Link Systems, the company designing the payment system, but adds that the prosecutor also was aware of the alleged fraud through the media.
Brenno de Winter says he didn’t see another way of proving claims of the weaknesses of the system, mainly as the company behind the system had refused to answer direct questions.
Several other journalists joined him in his research, and published their results. However police has questioned none of them and the public prosecutor’s office has indicated that no other reporters are in the scope of a possible prosecution.
“I’m a freelance journalist whereas the other journalists have regular employments. So to be singled out hits me harder than it would hit the national news,” Brenno de Winter says.
The core of the case is a digital payment system for public transportation, a project mainly funded with public money, and with a price tag with a large number on it.
Brenno de Winter argues that the used technology is highly insecure and that several scientific studies have warned for the risks for using this card as a payment system.
But a decision to carry on was made on the promise that fraud easily would be detected, and fraudulent cards would be blocked after a maximum of 24 hours.
Early this year Brenno de Winter showed that people with a basic computer knowledge is capable of defrauding the system, using standard tools available on the Internet.
He also showed that this could be done without the system detecting the attempts, and that cards generally aren’t blocked.
And he proved that using a card that has been blocked is still possible without being discovered by the system.
“The central systems turned out to fail in all thinkable ways,” Brenno de Winter claims.
The seemingly vulnerable payment system had caught big attention in the Dutch media and the revelations have been debated in the Parliament.
At the prosecutors office Mary Hallenbeek says that a decision to prosecute or not, and if so, on what grounds, most likely will be taken within a week or two.
The article has previously been published on Wobbing.eu
Update September 9th: Investigation closed and case dropped. Read more on Wobbing.eu
Politicians have said it. The European Ombudsman has said it. Now even the European Court is getting close to saying it: Freedom of information is a fundamental right in a democracy.
My point today is, that rights wither away, if we do not use them. So we need tools to help us do so. I’ll be back to that later.
The Court did not go quite as far as saying, that access to information held by public authorities is a fundamental right. However it did say that he European people shall have the widest possible right of access to information. The latter was said in a court case decided yesterday, just read from point 55 of the court decision and onwards. The Spanish NGO Access Info had asked which EU countries are in favour and which are against the new draft EU regulation on access to documents. It thus challenged the Council tradition of not disclosing member states arguments in negotiations. A recent report shows that only five countries released documents on the positions. But how, then, can there be any political debate?
The Access Info court case is one of numerous where NGOs, politicians, companies and individuals fight for the right of freedom of information.
The EU as well as most of its member states have laws regulating this particular to the public. Those countries, who still do not have a law, do at least have the EUs access to environmental documents directive.
However once a law is in force, it has to be used. Particularly, maybe, in Europe. We have the very open traditions giving large access to information to the public in the Nordic countries. Not only is it a public law to provide information to the citizens, it is an explicit aim by the ministerial administrations. Also the United Kingdom, Estonia, Slovenia, the Netherlands and others have strong and efficient laws.
Now when it comes to efficiency, it’s not easy to divide in good and bad. We have to look at habit. If citizens, NGOs, journalists, lawyers, companies do use their right to freedom of information, a practice will evolve to obey by the law. Court cases (as the one of yesterday) or decisions by ombudsmen and information commissioners strengthen the respect for the public’s interest to know. And numerous requests give officials the habit of sharing public information with the public – which, too, is a question of habit and respect.
Citizens and more importantly even journalists have the task to use the law intelligently and persistently. We have to consider our requests carefully and target them clearly – in respect for the workload that a decent and thorough answer (which we have a right to and expect) may bring to often understaffed departments in the administration. We have to be polite, clear and efficient in our contact with officials. Using our right is not an act of aggression – as it is considered in many countries without a tradition for openness. Filing a request for information is nothing but using an administrative option inhabitant in any vital democracy which citizens can expect to be administrated as any other administrative task within a certain time frame and in a constructive spirit.
In order to help journalists and others to use our right to access to information, we have updated and improved an obvious tool for using our right. Do have a look at the new wobbing-site. Wob is Dutch journalists’ slang for freedom of information laws, and it can be changed easily into a verb: Have you been wobbing today?
Two journalists, one story – but how to achieve impact? In the story about the Latvian Brides, cooperation of journalists from two countries led to research so thorough, that the story was quoted in various European countries.
Aleksandra Jolkina from Latvia and Jamie Smyth from Ireland have been researching the story of sham marriages in each their end of the EU. Latvian women were lured into marriages with non-EU males, in order to get them residence permits – possible under Irish and EU legislation. Some of the women experienced appalling abuse.
Last year they decided to cooperate. With the help of a research grant from Journalismfund.eu they could cover the necessary travelling and other costs, to do the research.
“Working together enabled both of us to identify contacts in each other countries that would have been difficult or impossible to source while working on our own,” Jamie Smyth said about the cooperation, when he published the common research for an Irish target group in the Irish Times, where he is a staff writer.
The first publication was done for an Irish target group in the Irish Times in October, the second publication was done in book format for a Latvian target group recently.
Publication in Ireland:
Irish Times: Irelands sham marriage scam, Trapped in a sham marriage, Couple go to High Court with sham marriage decision, Comment: Ireland must take action to stop sham marriages
Quotations of the story in other countries
Canada: CBC Radio