17 March 2016 – the Ombudsperson of Republic of Kosovo has published today the Report with Recommendations C. 348/2015, regarding restriction of the right for access to public documents.
The purpose of this Report is to draw attention of Fushë Kosova Municipality regarding Mrs. A.G. complaint lodged, concerning restriction of the right for access to public documents as well as constitutional liability of state public authorities to cooperate with Ombudsperson Institution.
Legal liability of the Ombudsperson is grounded on Article 18.1.2 of the Law No. 05/L-019 on Ombudsperson: ” to draw attention to cases when the institutions violate human rights and to make recommendation to stop such cases and when necessary to express his/her opinion on attitudes and reactions of the relevant institutions relating to such cases”.
Furthermore, Article 135, paragraph 3 of the Constitution entrusts the Ombudsperson “[...] to make recommendations and propose actions when violations of human rights and freedoms by the public administration and other state authorities are observed.”
The Ombudsperson, based on legislation analyses, in the above given Report, states that the right to access public documents is the right guaranteed by Article 41 of the Constitution of Republic of Kosovo. Paragraph 1, defines that: “Every person enjoys the right of access to public documents”, while paragraph 2, of the same Article of the Constitution, determines that ““Documents of public institutions and organs of state authorities are public, except for information that is limited by law due to privacy, business trade secrets or security classification.”
The spirit of Article 41 of the Constitution of Kosovo has been spread to the Law on Access to Public Documents No. 03/L-215, according to which: “This Law shall guarantee the right of every natural and legal person to have access, without discrimination on any grounds, following a prior application, to official documents maintained, drawn or received by the public institutions”. Article 9.1, of the Law No. 02/L-28 on Administrative Procedure as well as Administrative Direction No. 05/2013 for transparency in the Municipality, are on the function of strengthening of the transparency and the right to be informed.
Universal Declaration of Human Rights also guarantees "Freedom to seek, receive and impart information and ideas through any media and regardless of frontiers” such as does the European Convention on Human Rights, which in its Article 10 foresees that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. On the other hand, The European Court on Human Rights states that delays in provision of information can diminish gradually or the entire value of the information and interest on that information.
The Ombudsperson observes the fact that, just as the Constitution of Kosovo, the European Convention as well, foresees the right to receive and impart the information as a right which is not absolute and restriction of such right can be done for specific reasons.
In the current case, Fushë Kosova municipality has failed to provide proves or evidence that would justify rejection of the request for access to requested documents by Mrs. A.G. Additionally Fushë Kosova municipality has provided belated response on one of submitted request, in a way that it did not contain the advice for use of legal remedy as foreseen with the Law on Access to Public Documents.
The Ombudsperson, bearing in mind that “Only the law has the authority to determine tasks and responsibilities for legal and natural persons”, as well as based on the above given facts, ascertains that failure of the municipality of Fushë Kosova to replay on Mrs. Albana Gashi’s request and partial response to the request provided, are opposite to the provisions of the Law No. 03/L-215 for Access to Public Documents.
Therefore, with intention to improve the Respect of the Right to Access to Public Documents as constitutional and legal right, in order that this right is practiced by citizens as a powerful tool for controlling the work of governmental bodies, which will impact on improvement of the work of state bodies and increase transparency and accountability, in accordance with Article 135, paragraph 3, of the Constitution of the Republic of Kosovo, and Article 27, Law on Ombudsperson No. 05 / L-019, the Ombudsperson recommends:
That the Municipality of Fushe Kosova undertake steps to strengthen public officials’ capacities regarding implementation of the Law on Access to Public Documents as well as the Law on Ombudsperson.
Full Report of the Ombudsperson regarding the complaint No. 348/2015 regarding restriction to the right to access public documents, has been delivered to Fushë Kosova municipality on 14 March 2016.
Pursuant to Article 132, paragraph 3 of the Constitution of Republic of Kosovo and Article 28 of the Law on Ombudsperson No.05/L-019, the Ombudsperson awaits to be informed on actions that the Municipality of Fushe Kosova will undertake regarding this issue in response to the preceding Recommendation within the reasonable time frame, but no later than thirty (30) days from the day of its delivery.
Report with Recommendations concerning Complaint No. 348/2015, in its full form, as has been delivered to the responsible authorities, can be found in OI official web page (click here) The same is also disseminated to the media.
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