The Hadžifejzović Case: Threats of Rigorous Sanctions From the CRA
The Hadžifejzović Case: Threats of Rigorous Sanctions From the CRA
Influence of politics on regulatory bodies.
Photo: Screenshot / FACE TV
The announcement by the Director of the Communications Regulatory Agency (CRA) of Bosnia and Herzegovina (BiH) Draško Milinović, followed by the official announcement that the Agency has launched a "summary proceeding" against FACE Television and the owner and editor of that outlet, Senad Hadžifejzović, is a precedent that has never been recorded before in the history of the CRA. According to the sources of Mediacentar Sarajevo, this announcement and the actions of the CRA can be seen as politically motivated. They warn that taking a position and giving a qualification for something when the facts have not yet been established is against the fundamental principles of any legal procedure.
Media expert and former media ombudsman Mehmed Halilović reminds that the director of CRA does not have the authority to react to an individual case in the way he did, without the commission having previously decided on the case. He adds that the political motive is noticeable in Milinović's urgent announcement of radical measures and rigorous penalties, but also the possibility of closing down FACE Television.
"In principle, in any such cases, the CRA bodies must first establish, that is, investigate, and only then come up with some initiatives or activities. It is truly unheard of that the general director of CRA would make and give such a statement practically within 24 hours and open the procedure and propose rigorous penalties", says Halilović.
Mladen Bubonjić, a professor at the Independent University in Banja Luka, also reminds that the director of CRA cannot initiate proceedings because there are established procedures for that, and adds that Milinović can exert pressure in this way.
"What is symptomatic is that the initiation of the proceeding is published as a press release, which has not been the practice until now. This indicates the severity of the act that is sought to be imposed. Whether Senad Hadžifejzović said 'kill' or 'pacify' should be determined through analysis, not by the director 'blankly' determining the penalty, on a Sunday moreover," Bubonjić told Mediacentar Sarajevo.
On October 31, the Communications Regulatory Agency initiated preliminary proceedings against FACE Television, because, as they stated, owner and editor Senad Hadžifejzović asked one of the interlocutors on the show whether Milorad Dodik should be "killed". The decision to initiate proceedings against FACE Television was announced a day earlier in a statement to the SRNA news agency by the Director of the Agency, Draško Milinović.
"It is a summary proceeding given that, at first sight of what happened, it is very clear that the Code on the provision of audio-visual media services and radio media services was violated," said Milinović, who was the director of the Radio-television of Republika Srpska (RTRS) before becoming the head of CRA.
Appointment as the head of the CRA
Draško Milinović was named the head of the Communications Regulatory Agency of Bosnia and Herzegovina in July 2020 from the position of general director of RTRS. By a majority decision (4:2) of the members of the CRA Council, Milinović was proposed as the new director of this regulatory body in April 2020, after which the decision was confirmed by the BiH Council of Ministers.
Until March 2014, when he was appointed to the position of general director of RTRS, Milinović was the chief of staff of the then-prime minister of RS, Željka Cvijanović. Before that, he was in the cabinet of the president of that entity, Milorad Dodik. The regulatory agency fined him for not implementing the decisions that the CRA had previously issued to RTRS.
In an open letter, the owner and editor of FACE television, Senad Hadžifejzović, is categorical that he did not use the word "kill" but "pacify" in the show after the Central News, and to support his claims he attached a recording of the show as evidence.
In the work of the Agency so far, there has not been a case where the director announced "rigorous measures" through the media, prior to the established procedure followed by the CRA because, as Milinović said, "at first sight of what happened, it is very clear that the Code on the provision of audio-visual media services and radio media services was violated." A proceeding before the Regulatory Agency for Communications can be initiated in two ways, by complaint or ex officio, after which the Commission considers the case and makes a first-instance decision. If there is no appeal filed with the CRA Council, the decision becomes final.
After the media announcement came the reaction of the Agency in an official release in which they state that the reason for the urgent reaction of the CRA is the fact that "a part of the public in Bosnia and Herzegovina was upset by the possible use of the word 'kill', which is inadmissible in the public media space, in the aforementioned program content, which could be interpreted as incitement to commit criminal acts".
They also refer to the provisions of the Code on the provision of audio-visual media services and radio media services, Article 3 (Basic Principles) paragraph 9, which states that "audiovisual media services and radio media services shall not convey a clear and immediate risk of causing negative consequences including, but not limited to death, injury, damage to property or other types of violence, or interference with police activities and medical services or activities of other services to maintain public order and security".
In its response to Mediacentar Sarajevo, the Communications Regulatory Agency stated that during the preliminary proceeding, which in this case has already started, the Agency does not comment on the elements and course of the procedure itself, when it comes to any licence holder.
"The framework of executive measures generally applied by the Agency is included in Article 46 of the Law on Communications - Executive Measures, while specific cases of violation of licence conditions in the broadcasting, telecommunications and radiocommunication sectors are detailed in the document Overview of violations and corresponding penalties imposed by the Communications Regulatory Agency. In this as in all other cases, the preliminary procedures are conducted based on the provisions of the Rulebook on the procedure for resolving the conditions of permits and regulations of the Communications Regulatory Agency, which is based on the principles of administrative procedure", it was stated in the answer from the CRA.
"Reckless and nervous action of Draško Milinović"
In the opinion of lawyer Plamenko Čustović, who was the chairman of the CRA Council two years ago, the initiation of proceedings against Senad Hadžifejzović and FACE Television is "completely inappropriate, hasty and unnecessarily nervous action".
"Taking a position and giving a qualification for something where the facts have not yet been established is in sharp opposition to the fundamental principles of any legal procedure. The director of the CRA should by no means allow himself to ‘slip’ like this", believes Čustović and asks: "Does it make any sense to initiate and conduct a proceeding if the director has already concluded what the bottom line is 'at first sight' and, in accordance with that, made a judgement?".
He adds that such an important institution as the BiH Communications Regulatory Agency should be headed by a highly professional person of strong integrity, independence and, above all, impartiality. "If that is not the case, and it is not, we get the result we have," says Čustović.
Mehmed Halilović also believes that this is an ill-advised move and adds that such a move was probably politically orchestrated by Banja Luka and very possibly made to satisfy the political wishes and desires of Milorad Dodik, SNSD and that political group in Republika Srpska.
"This is of course unacceptable and it is especially unexpected from the CRA, which has lost its credibility in recent years and is headed by a man who came from RTRS, who has made and is still making a large number of professional lapses, to say the least, and that is certainly hate speech," said Halilović.
As stated in the archive of the Agency's website in the section that explains how to file a complaint, the Communications Regulatory Agency (CRA) is an independent institution of Bosnia and Herzegovina that performs its duties in accordance with the goals and regulatory principles detailed in Art. 3 and 4 of the Law on Communications ("Official Gazette of BiH", 31/03). It is added that in performing its duties, the CRA acts in accordance with the principles of objectivity, transparency and non-discrimination.
In April 2020, Plamenko Čustović submitted his resignation from his position in the CRA Council, when, as he told Mediacentar Sarajevo, Draško Milinović was elected as the director of the Agency. He did this because, as he states, Milinović was elected to the position of director for "purely political reasons". He adds that even then, a little more than two years ago, he said that he was convinced that politics had made a grand entrance into the CRA.
"It was not very insightful to reach that conclusion, but unfortunately, it has now been clearly and openly proven. At that time, our public was not overly upset that the chairman of the CRA Council stated this and resigned, but unfortunately, now it turns out that such mistakes inevitably come back to haunt you," says Čustović.
In the explanation of his resignation, Čustović pointed out that "it was a matter of choosing between a candidate who, according to the evaluation of the CRA Council itself which was given when adopting the work report, has four years of successful work at the head of the Agency (Mr Kovač), and a candidate who, until he applied for the position, was the director of the Radio Television of Republika Srpska (RTRS), a public broadcaster that was repeatedly fined by the CRA of BiH in the past".
A policy of (non)penalisation
Mladen Bubonjić reminds us that the number of fines for RTRS decreased sharply after Draško Milinović was appointed as the head of the CRA. One of the analyses by Mediacentar Sarajevo shows that, until the arrival of the former director of RTRS Draško Milinović at the head of the CRA in July 2020, fines were imposed on RTRS on several grounds - from violations of the Code on audiovisual media services and radio media services, through violations of the Commercial communications code, to violations of the Law on Communications. The last fine imposed on RTRS, which was published in the annual report on violated rules and regulations, was in 2019. Already the following year, when Milinović was appointed as director of the CRA, no fines were imposed on RTRS.
"Year after year, RTRS was a 'leader' among the media in BiH in terms of breaking all the rules of professional and responsible journalism, and suddenly, 'overnight', with the arrival of Milinović at the head of the CRA, it became an exemplary media outlet. The number of reports against RTRS has not decreased, only the number of fines has decreased. It is difficult to escape the impression that there is no political influence in all this", says Bubonjić.
Mehmed Halilović says that apart from the first years since it was formed, and especially during the mandate of the current director, the Communications Regulatory Agency has never taken adequate measures against RTRS "which constantly violates all professional norms and spreads hate speech and is a cancer in the media space in BiH".
Announcement on the initiation of CRA proceedings on a Sunday
Regarding the statement of the CRA Director, the Board of Directors of the Association of BH Journalists invited the Council of the Agency to analyse in detail the statements of the Director General, Draško Milinović, particularly the part of his announcements about "rigorous penalties" for FACE Television and the editor of that media outlet, Senad Hadžifejzović, but also to determine whether Milinović, as the director of the Agency, violated the provisions of professional and ethical performance of duties.
In the announcement, they stated that the director of the CRA "judged" Hadžifejzović and FACE Television in advance, which is a precedent not recorded so far in the work of the CRA. They assessed the statements of the CRA Director as an "evident violation of the provisions of the Code". They demanded an urgent reaction from the Council to protect the professional and independent work of this regulatory body, because, as stated in the announcement, "rigorous" measures and sanctions are announced for FACE TV even before the procedure has been carried out.
They drew attention to Article 8 of the CRA Code of Ethics, which states that "members of the Council of the Agency and the General Director must not abuse their authority and allow personal interests and relationships to result in situations that may affect the possibility of objective judgment, and professional and ethical performance of duties and work obligations".
Dodik's request is an attempt to restrict freedom of speech
On Monday, 31 October, SNSD President Milorad Dodik requested that, in addition to preventing hate speech, laws be prepared to prevent the spread of fake news, to amend the Criminal Code with the introduction of defamation and insult into the Criminal Code as a criminal offence, and to expand the definition of crimes against the constitutional order.
The motive of his request, as Mehmed Halilović says, is to try to introduce control, to limit freedom of speech and introduce control in the public and media space, and to take Bosnia and Herzegovina, and especially the entity of RS, back a few steps.
"I don't think he will succeed, and I hope and believe that domestic, international, non-governmental and governmental organisations are obliged to react adequately and to do everything to prevent that from happening," says Halilović.
Mladen Bubonjić says that the supporters of Milorad Dodik insist that Hadžifejzović said "kill", and even if he did not say it, it is critical for them that he called for his dismissal, while they ignore the fact that their "legitimately elected representative of the people" acts destructively and has been spreading fear and hatred for years.
"Which certainly does not justify the call for his murder, if there was one at all. As far as politically motivated decisions are concerned, Milinović is just one of many examples of politically ‘installed’ followers at the head of an institution," says Bubonjić.
How to report a violation of the Media Code on television and radio?
If content is found in a television or radio program that violates the standards of the media profession concerning the publication of inaccurate information, as well as discriminatory and inciting reporting, it can be reported to the independent state body responsible for regulating the broadcasting of television and radio programs - the Communications Regulatory Agency in BiH.
The CRA recommends that one can first contact the station that broadcast the disputed content before filing a complaint, but a complaint can be filed even if this is not done.
Complaints can be submitted to the Communications Regulatory Agency about content broadcast on radio or television which violates the Code on audiovisual media services and radio media services that prescribes the rules for the content of radio and TV stations' programs; or the Code on commercial communications that prescribes the rules of advertising on radio and TV stations.
The objection must be submitted in writing and can be submitted by email, post, fax or taken directly to the Agency's office. According to the Rulebook on the procedure for solving violations of permit conditions and CRA regulations, complaints can be made orally on the record at the Agency's competent sector, and urgent complaints can also be made by telephone.
The complaint should contain the contact details of the person submitting it, but anonymity can be requested, which also applies in the case of a verbal complaint.
The complaint needs to contain the name of the radio or TV station against which the complaint is submitted, the name of the program, the date and time of the broadcast of the program to which the complaint relates, and an explanation of what is considered controversial in the reported content.
Given that TV stations are obliged to keep a recording of the broadcasted content for up to 14 days after the broadcast, the complaint should be submitted within that period in order to be sure that the CRA will have insight into the disputed content.
If it accepts the complaint, the CRA can ask the radio or TV station to declare their position and can initiate proceedings against it. As a state institution, the CRA has the legal authority to sanction broadcasting stations for violating the regulations governing broadcasting.
Among other things, the CRA can issue warning measures (oral or written) for minor violations of the Code, fine the station for serious violations of the Code or other regulations, revoke the station's broadcasting licence in case of the most severe violations of laws and regulations (such cases include activities in communications that could cause greater material damage, cause danger to people's lives and health, public safety, public order and peace, public morality and disturbances in the economy).
Translation: Tijana Dmitrović