WHAT ARE THE CHALLENGES FACED BY ACTIVISTS IN BOSNIA AND HERZEGOVINA: SLAPP Lawsuits, Damage to Reputation, Threats, Physical Attacks…

"Last week, a hearing was held in the Basic Court Department of Sokolac regarding the lawsuit filed by the company 'BUK,' which is constructing a hydroelectric power plant on the Kasindola River in Istočno Sarajevo, against activists who publicly expressed concern about potentially irreparable damage to the river and the surrounding ecosystem.

The same investor has filed one lawsuit against Sunčica Kovačević with a compensation claim of 5,000 KM and two lawsuits against Sara Tuševljak with a total compensation claim of 10,000 KM. Both are members of the ACT Foundation and activists of NGG Stop the construction of small hydroelectric plants on the Kasindola River.

An analysis by Amnesty International concluded that the lawsuits bear the characteristics of strategic lawsuits against public participation (so-called SLAPPs), as previously reported by Fokus".

INSTEAD OF A MONTH, EXPERT REPORTS COMPLETED IN A YEAR

The expert assessments in these cases, as per the decision of the Basic Court in Sokolac from May 2023, were conducted by an expert team from the Centre for Expertise and Evaluation "Zenit" Ltd. The team comprised forestry, hydrology, meteorology, and civil engineering experts. The total cost of the assessments amounts to 14,973.66 KM, as stated in the court decision we obtained. 

Žurnal contacted "Zenit" and inquired, among other things, about the basis for determining the price of the assessments. However, "Zenit" stated that they were not authorised to provide the requested information about the conducted team assessments and referred us to the competent court. They also emphasised that in this, as in every other case, members of the expert team acted with the utmost professionalism, independence, and adherence to professional standards. 

Although the deadline for the assessments was one month, as specified in the court decision, they were completed this year. This is evident from "Zenit’s" notification to the court regarding the completion of the report with findings and opinions, dated 20 September 2024. In this notification, they explained that the process involved complex and standard assessments, necessitating a longer working period for the expert team. 

The timeframe for completing the assessments was questioned during last week’s hearing by Biljana Radulović, the lawyer representing Sunčica Kovačević. She asked forestry expert Boško Despot whether the assessment, in this case, could be precise, to which he responded that he saw no issue "provided that data from logging plans and their execution are available, along with thorough field inspection". 

The report, which we also had the opportunity to review, stated that members of the expert team visited the site on 11 June this year alongside representatives of the plaintiff, from whom documentation used in the evidentiary process was collected. One of Radulović’s questions to the hydrology expert was whether "it is customary for their institution to conduct assessments with representatives of the plaintiff but not the defendant". This question was addressed by "Zenit’s" director, who stated that all general and specific conditions for assessments had been met. 

"We ensured that the experts visited the site when weather conditions allowed and informed the court that the interested parties could accompany the experts on-site to provide suggestions. To my knowledge, the experts were on-site all day, but none of the parties attended", he explained, as reflected in the hearing transcript obtained by Žurnal. 

Nevertheless, the report noted that the "findings were prepared based on the available and collected documentation from the court files and the plaintiff’s materials from the field"...

Lawyer Radulović raised objections to the experts' findings, particularly in areas that exceeded the scope of the assigned tasks for hydrology and forestry experts, as well as in sections that contradicted the claims in the lawsuit and the material evidence. The examination of the experts will continue next year. 

Sunčica Kovačević told Žurnal that it is problematic that this report does not include their evidence or the photographs they submitted to the court. 

"It does not contain other documents we attached to the case file, and most of the evidence relies on photographs they took in June this year. It is also problematic that they visited the site two and a half years after the events we spoke about, which led to us being sued, and they prepared the report a year after the court's request for the assessment. So, in many respects, this assessment is problematic for us", said Sunčica Kovačević.

She recalls that upon receiving the lawsuit, she believed the sole aim of the investor was to intimidate her with the high monetary demands and to punish her for speaking out about their project and initiating legal actions against their permits. Additionally, she believes it was because they involved other citizens in the fight against the destruction of the Kasindolska River. 

"They don't want anything to be written about the fight for the Kasindolska River", says Sunčica Kovačević. 

These lawsuits did not frighten the activists. They continued their struggle. 

"A month or two ago, we filed a lawsuit against the environmental permit and a request for the protection of the Kasindolska River. They failed to intimidate us. What’s characteristic of these lawsuits is that you end up spending your time dealing with matters you never thought you’d face, Kovačević emphasises.

The company "BUK" d.o.o. is owned by the Belgian company Green-Invest. They previously told Radio Free Europe (Radio Slobodna Evropa) that the lawsuit is not directed against freedom of speech or environmental activism but against defamation and falsehoods that cause reputational damage. 

It is worth noting that the first hydroelectric power plant, "Podvič", on the Kasindolska River, began operation in September 2019. Plans include additional small hydroelectric plants, "Samar" and "Slapi", but an informal group of citizens from Istočno Sarajevo has been opposing their construction for four years. According to media reports, the Constitutional Court of BiH and the Supreme Court of RS halted the construction, yet despite this, the RS Ministry of Spatial Planning, Construction, and Ecology reissued environmental permits for the projects. Lawsuits and a request for a retrial have been filed against the ministry's decision.

SLAPP LAWSUITS AS A TOOL TO PRESSURE JOURNALISTS, ACTIVISTS, AND CIVIL SOCIETY ORGANISATIONS

Activists face numerous challenges in their work, including SLAPP lawsuits, defamation campaigns, physical attacks, threats, and chronic stress, said Azra Berbić, an activist with the ACT Foundation, in an interview with Žurnal. 

Additionally, she noted the presence of pressure from individuals and companies profiting from the exploitation of natural resources, including mining companies and political structures that often support such projects. 

"We have also seen cases where activists were targeted through pressure on their family members, obstruction of their work if they ran small private businesses, or offers of 'rewards' from investors to abandon their fight. Some were even given 'well-intentioned advice' to give up their struggle", Berbić stated.

According to her, SLAPP lawsuits are also used in our country as a tool to pressure activists, journalists, and civil society organisations dealing with sensitive issues such as environmental protection, human rights, and corruption. 

"Our experiences show that these lawsuits are often accompanied by enormous compensation demands, which further intimidate and demotivate the defendants. Those investigating topics such as irresponsible exploitation of natural resources, the construction of hydroelectric plants, corruption, or human rights violations are particularly at risk. While most often these are defamation lawsuits resolved in civil proceedings, the risk for activists and journalists has now increased because defamation, criminalised in the entity of Republika Srpska, can also lead to prosecution through criminal proceedings", added Berbić.

According to her, foreign mining companies are increasingly sending pre-lawsuit warnings to activists who loudly oppose so-called green mining in their communities.

"Additionally, the powerful do not hesitate to threaten lawsuits for damages against local communities and even the activists themselves. We had a case where the activists from the association 'Za Doljanku Jablanica' were sued by Mirza Teletović's company for damages due to a short protest they organised. That case was swiftly resolved in court, while the activists fought their legal battle for years to prove that the permits for the construction of the 'Zlata' hydroelectric power plant were not issued in accordance with the law", emphasised Berbić.

What Sunčica Kovačević and Sara Tuševljak are currently going through has been experienced by several other activists in the past. One of them is Hajrija Čobo, an activist from Kakanj, who received a SLAPP lawsuit from the British company Adriatic Metals BH due to her work in protecting forests and water sources in Kakanj.

 "ACT organised a support campaign for Hajrija, with activists from Bosnia and Herzegovina, Serbia, and Montenegro participating, which showed the importance of solidarity. Hajrija also received legal support and assistance in connecting with international organisations such as Front Line Defenders", said Berbić.

According to her, the recent case of Sanja Vasković, a journalist from the Spin Info portal, against whom the owner of the private company Mraz d.o.o. filed a criminal complaint for defamation due to her investigative work exposing irregularities in business operations and links with authorities, shows how SLAPP is used not only through civil lawsuits but also through criminal complaints. This further complicates the work of journalists and introduces an additional element of intimidation.

"SLAPP lawsuits are obviously motivated by a desire to intimidate and silence activists and journalists. They only further burden an already overloaded judicial system and are never intended to prove the truth or for the defendants to compensate for the alleged damage", concludes Berbić.

One of the environmental activists who has been targeted by various attacks, including lawsuits, is Robert Oroz, president of the Ecological-Humanitarian Association "Gotuša" from Fojnica.

"Given that I have been an active activist for more than 15 years, I have encountered various attacks. From lawsuits in the millions in the fight against the construction of the 'Luka' hydroelectric power plant in Fojnica, to threats with weapons and criminal charges, to physical attacks. Unfortunately, activists are often completely unprotected and vulnerable in such attacks", emphasises Robert Oroz for Žurnal.

He believes that behind such attacks are often various investors, both foreign and domestic, who are, as he says, "happiest when they realise their lucrative projects far from the eyes of the public". It often happens, he adds, that citizens, under the influence of investors or political parties, attack activists who fight for the common good, calling them "foreign mercenaries" or "those who hinder development and investments".

"Citizens are often unaware and uninformed about the dangers, and they are excluded from public discussions. The media presence of investors makes their project more acceptable to the public, which perceives that new jobs will be created. Fortunately, there are always those who understand the situation and give selfless support to activists in their struggle. So there are no rules; it depends on the case", added Oroz.

Regarding SLAPP lawsuits, Robert Oroz also believes that their goal is to exhaust and intimidate activists through unfounded lawsuits, in order to silence their engagement.

"Legal processes in such cases are very exhausting, which further discourages other people and activists from fighting. It is very difficult to deal with such problems if activists are doing it alone, without the support of other activists and the public. That is why it is very important to support the victims of such lawsuits, because it is difficult for any individual to cope with the immense pressure and procedures they go through during such cases, and this is what the investor counts on, as money is not a problem for them to participate in such processes. All with the intention to intimidate and pressure activists, to justify their work to the company owners", said Oroz.

WE NEED A LAW ON CIVIC INITIATIVE FOR THE PROTECTION OF CITIZENS AND ACTIVISTS

Azra Berbić emphasises that recognising and addressing the issue of SLAPP lawsuits in Bosnia and Herzegovina requires an urgent and decisive response, particularly through aligning domestic legislation with the EU anti-SLAPP directive and the recommendations of the Council of Europe. These steps, she explains, are essential to ensure the protection of activists' and journalists' rights to freedom of expression and to provide courts with a legal framework to recognise and dismiss SLAPP lawsuits.

"By implementing these measures, we would not only prevent the abuse of the judiciary as a tool to silence those raising important social and environmental issues but also relieve the already overloaded judicial system", she points out.

According to her, alongside legislative regulation, it is crucial to raise awareness about the problem of SLAPP lawsuits to better understand their harmful effects on democratic society. Bosnia and Herzegovina is in a specific situation where SLAPP lawsuits are often directed at those fighting for the preservation of natural resources or public goods, the rule of law, and fundamental human rights, further highlighting the need for immediate action to enable the unhindered work of activists and journalists without the fear of legal prosecution.

"Protecting activists from SLAPP lawsuits requires a comprehensive approach. First, it is necessary to provide legal support through collaboration with experts, but it is also important to build networks of solidarity and support, as ACT did through the support campaign for Hajrija Čobo. Finally, it is crucial to strengthen the resilience of activists through training, psychological support, and ensuring both their physical and digital security", concludes Azra Berbić.

The draft Law on Civic Initiative for the Protection of Citizens and Activists in the Federation of Bosnia and Herzegovina was adopted in June by the House of Representatives of the FBiH Parliament, says Emina Veljović from the Aarhus Centre in BiH, which prepared the draft.

"Our vision is for it to pass the House of Peoples. If we had this law in the Federation, it would be much harder to harass journalists and citizens in this way", Veljović emphasises.

She explains that if there were an ANTI-SLAPP Law or a provision within another law, such as the Law on Civic Initiative, it would "compel" the court, before initiating the procedure to decide on the merits, to assess based on the plaintiff’s evidence whether the claim really indicates harm or whether, from the case file alone, the irregularities are apparent.

"This means giving the court the possibility to dismiss the lawsuit and shifting the burden of proving the existence of damage onto the plaintiff, which is currently the opposite in our legal system, where the defendant must defend themselves, which is the normal course of events. But with an anti-SLAPP provision, you would instruct the court to be cautious and pay attention to whether it is really possible that a multimillion-dollar investor has been harmed at the level of a student", our interlocutor illustrates.

The court, she added, would then have greater responsibility and freedom, making it much more difficult for investors or other individuals to intimidate activists and other citizens in this manner.

In the report "SLAPPs in Europe: Mapping Trends and Cases" released by the CASE European ANTI-SLAPP Coalition, it is noted that between 2010 and 2023, 1,049 SLAPP lawsuits were filed. In 2023 alone, 166 SLAPP lawsuits were filed.

The report highlighted that journalists, editors, activists, and non-governmental organizations are most commonly targeted, and that in 2023, the issue of public interest related to corruption in 36.1% of cases, followed by 16.3% concerning environmental issues.

(zurnal.info)