Mentorship | One-on-one | Transparency

Mexhide Demolli-Nimani: Institutions should be fined for not respecting the law.

By - 23.12.2018

The director of Lëvizja FOL discusses the ongoing fight for government transparency and open access to public documents, especially where taxpayer euros are concerned.

In the last 10 years, the Government of Kosovo has undertaken a number of capital investments in infrastructure. Unfortunately, what most of these projects have in common is a lack of institutional transparency.

Among them is the contract for the so-called Ibrahim Rugova National Highway, which connects Kosovo to Albania and was built by Turkish-American consortium Bechtel-Enka. The contract remains classified by the Kosovo’s government, and the total cost of the project never made public.

From the start of its construction in 2010, non-government organization Lëvizja FOL, like many other NGOs, has insisted on the public’s right to see the contract that is paid by taxpayer money. However, FOL took it a few steps further.

Initially, they sought access to the contract and dossier of the highway tender, calling on the Law on Access to Public Documents. After the Ministry resisted the request, FOL issued a lawsuit in the Basic Court of Prishtina, which confirmed the violation of the law and ordered the Ministry to make the documents public, but the Ministry exercised its right to appeal the decision in March 2018. Since then, the public has been waiting for a verdict from the Appeals’ Court; meanwhile eight years have passed since FOL initiated the entire process.

In general, Kosovo institutions, including those of the highest government level, do not hesitate to violate the Law on Access to Public Documents by refusing to provide requested documents, or by allowing only partial access to them.

In 2017, a new law for access to public documents was drafted with the idea of improving and addressing legal gaps. While the law is expected to be passed in Assembly next year, NGOs such as FOL still see flaws within the newest version.

As an NGO that has been operating since 2008, FOL is determined to improve the situation regarding access to information, namely to documents compiled by public administration officials. Director, Mexhide Demolli-Nimani, says that hiding information not only constitutes a violation of the law, but carries forward continuous consequences since often projects of institutions contain irregularities that could be prevented by opening documents.

In this interview about the barriers to accessing public data, K2.0 spoke to Mexhide Demolli-Nimani about the functioning of supervisory mechanisms, her thoughts on the new draft law that could soon be approved in the Kosovo Assembly, the lack of general institutional transparency, and what it means to enter a legal battle with the government.

Mexhide Demolli-Nimani is the director of Lëvizja FOL, a Prishtina-based NGO focused on anti-corruption, transparency and accountability. Photo: Besarta Bresnica / K2.0.

K2.0: Civil society, the media and individuals are in a continuous battle with institutions in the war for accessing information. What is the newest challenge that Lëvizja FOL faces in this aspect?

Mexhide Demolli-Nimani: Lëvizja FOL has started to monitor the process of tendering and development of the Prishtina-Gjilan-Dheu i Bardhë highway beginning in August. Despite receiving the contracts that were signed by the companies, we wanted to have access to the complete dossier, but this request was refused in 2017 with the justification that the case was in the possession of the Procurement Review Body [PRB]. After PRB brought the case back for reevaluation, the process started from the beginning and again there were dissatisfied parties.

It is important that all contracts were signed with eight different companies for building the highway which has been divided into eight lots, and we have reiterated our request to the Ministry of Infrastructure for having full access to the tender dossier. The Ministry did not respond to any emails that we sent, and after the legal deadline for responding passed, [on August 13, 2018] we filed a complaint with the Ombudsperson, which sent a letter to the Ministry of Infrastructure, but even this institution is yet to receive a response from the Ministry.

Meanwhile, the procurement official to whom I sent the request saw me on a TV debate [Betimi për Drejtësi, September 22, 2018] in which I explained once again that our request was denied, since the law specifies that if the institution does not respond, the request is considered denied. The next day he invited me to a meeting and told me that they would give us all of the requested documents, which has not happened since we weren’t given the Contract Management Plan through which we can monitor the progress of the construction work on the highway, as foreseen in the tender.

You made another request related to the project for the same highway. What was it?

Yes, [on October 1, 2018] we requested to see the public procurement plan that each ministry compiles every year. Namely, we sought the procurement plan of the Ministry of Infrastructure. Through this plan we would have been able to see when the construction of the highway was planned, so we could know whether the Ministry had a plan or a project beforehand, or if it simply came as a result of election campaigns.

The fact that they didn’t allow us to access the documents implies that the highway project was conducted ad hoc as a result of the election campaign, more so than [having been thought out and in motion] for a while.

Expropriation has always been seen as a contended issue because of the opportunities for misuse by people connected to politics who attempt to buy parcels along the highway tracks at low prices so they can benefit. Similar suspicions have characterized just about every major infrastructure project. How does this come into play in the case of the Prishtina-Gjilan-Dheu i Bardhë highway?

Unfortunately, the Ministry has not provided documents about where the highway will run through. This makes us suspect that politics can deviate or change the highway path depending on interests. In fact, we noticed changes in ownership of parcels in villages along the projected route of the highway. This does not seem coincidental. It seems that someone premeditated this and bought parcels of land from residents at much lower costs than they are expected to receive from the state through expropriation.

For this reason, we made a request to the Ministry of Finance, asking to see codes of parcels and cost estimations for each parcel. Officials from the Ministry of Finance hesitated to fulfill our request, saying that in the list of parcels there are also names of parcel owners. Although we weren’t interested to know the names of the owners, we received a negative response two days later, with the banal justification that public security would be endangered and the private rights of involved subjects would be violated.

We considered this justification to be insufficient, and yesterday [November 22] we sent a complaint to the Ombudsperson.

Do you suspect that there might have been instances of misuse in the process of expropriation related to the Prishtina-Gjilan-Dheu i Bardhë highway construction project?

Through requests for accessing documents, we wanted to learn what criteria was used to evaluate parcels along the highway route. On the side of the road in Lipjan there are generally agricultural lands, whereas the highway route that goes along Gjilan is mostly comprised of hilly terrain — less inhabited terrain in comparison to Lipjan, where there are multiple villages.

We visited the construction sites in the field and contacted residents, who spoke about cases in which parcels of land in those zones were sold before the process of expropriation. There is strong suspicion that evaluations that were conducted as part of this expropriation project are not real. Suspicion grew when we learned that the expropriation process began after the start of the road construction — normally, it should have been the opposite.

"We believed and still believe that we will win the case [of the Ibrahim Rugova highway] and we will see the documents, despite the delay."

As a result of delays in the expropriation process, the companies have also delayed the work, which could lead to penalties, as was the case with Bechtel-Enka and the Arben Xhaferi highway [the Government of Kosovo was forced to pay a fine of 53 million euros as a result of delays in the construction of this highway from Prishtina to Hani i Elezit]. Residents of the zone where the Prishtina-Dheu i Bardhë highway will run through were not sufficiently informed about the procedure and cost of expropriation, and there were cases where they themselves intervened to stop the companies during the construction of the road.

One day, during a visit to one of these municipalities, an official openly expressed his suspicion that sporadic purchases with no objective of investment from citizens in village zones or in the suburbs of cities raise suspicions for misuse.

It is clear that people who request information need support when facing institutions. How functional are the mechanisms that can be used to pressure institutions who refuse to allow access to public documents?

The Ombudsperson institution can only give a recommendation through which it instructs the institution to fulfill the request for access to documents. Institutions should be aware and should act in this regard, because delays or negative responses cause many issues for us. Our work and research is based on information that we receive from public documents.

We are also proceeding with the case of the Ibrahim Rugova highway, in which legal procedures have lasted for eight years, despite the decision in our favor by the Basic Court of Prishtina. The case has been at the Appeals’ Court in the last six months, because the Ministry exercised its right to appeal Basic Court’s decision within 15 days [Lëvizja FOL had requested access to the contract for the construction of this highway from Morinë-Merdare. After the Ministry of Infrastructure’s denial of access, FOL took the case to the Basic Court, which decided that the Ministry had violated the law, and gave the order for the documents to be provided. The case is still being processed in the Appeals’ Court, where the Ministry has appealed the Basic Court’s decision].

We believed and still believe that we will win the case [of the Ibrahim Rugova highway] and we will see the documents, despite the delay. Even if more than 10 years pass, irregularities in each project must be made public, and we think that the decision of the Court in our favor can make institutions more aware, and can make them think before refusing other requests for accessing documents.

We fear that these delays beyond every time criteria to respond to our request for access to the contract for the construction of the Ibrahim Rugova highway, first in the Basic Court and now in the Appeals’ Court, will influence other organizations to hesitate to make similar requests for accessing documents and information in general.

Organizations, media and individuals in general could be discouraged by the fact that such a simple request for accessing documents has been procedurally delayed for more than eight years.

Does this mean that organizations such as yours and others that seek access to documents are dependent in most cases at the mercy of institutions, which shamelessly decide not to open documents for citizens?

During our work we’ve had the opportunity to conduct many awareness-raising campaigns for access to information, thus we’ve closely investigated these issues. In one project we formulated requests for access to documents in the name of citizens, so we were the link between citizens and institutions.

In a case in Gjakova [on September 14, 2014], we collected 15 request for information that were written by citizens, and went to file these requests at the Municipality, however the assigned official said he couldn’t accept the requests, using the justification that he is unable to do this without prior approval from the deputy mayor of the Municipality. This happened when Pal Lekaj was mayor.

Afterward, the deputy mayor invited me to his office and I gave him the requests, which were written by the citizens in a form that we had designed.

He looked at the requests, read the names of the citizens who had filled in the requests, and laughed. For example, he saw the name of a person he knew and laughed at the request and the fact that the citizen wanted information from the Municipality. Officials have no right to act in such a way and it was painful to see the level to which certain officials had descended, especially in this case, with the official being a deputy mayor.

"There is a tendency for institutions to allow access to documents of low importance or to give partial answers for our requests."

Institutions also have deficiencies of a technical nature. For example, many institutions do not oversee the functioning of email addresses or other forms of communication. There are also other instances of failure in their electronic systems.

It is important that administration employees be professionally capable — to know laws, regulations and practices of institutions in detail — so that they can properly deal with requests for information. How does the administration stand in this regard?

The Office of the Prime Minister compiles a document that is called the Comprehensive Report, in which it registers all requests for accessing documents, which are received within a year. Consequently, the report also lists municipal officials and those from different institutions who are responsible for dealing with requests for accessing documents.

Seeing that we often face trouble when trying to contact or identify officials, we often use the Comprehensive Report to find out which officials are responsible for these tasks. So it is an unusual way to find the adequate officials with which we are supposed to work. However, citizens usually do not know that such a report exists, so they find it hard to contact responsible officials.

How much is your work, and the work of other organizations and individuals, influencing institutions to evolve and improve in relation to providing access to public data?

Again, I’m talking about tenders because of our activities and their importance. There is a tendency for institutions to allow access to documents of low importance or to give partial answers for our requests. Take for example the Prishtina-Gjilan-Dheu i Bardhë highway, we were allowed access to contracts that were procedurally OK, but were not allowed access to the Contract Management Plan, as I mentioned above.

In one contract that we saw, one of the engaged companies foresaw the construction work to end in a period of 30 months of working days, whereas in the stated length of construction work it is said that the highway would be completed within 30 months. The difference between 30 months and 30 months of working days is a big one, and could lead to delays. To monitor whether such a thing would happen, we would need the Contract Management Plan, a document that was not provided to us.

Lëvizja FOL has spent the last eight years fighting for public access to documents detailing the construction of the Ibrahim Rugova highway. Despite the delay, Demolli-Nimani says they plan to continue to pursue access. Photo: Besarta Bresnica / K2.0.

How do you evaluate the Draft Law on Access to Documents that is currently being processed? How will this law improve mechanisms that oversee its implementation, when we know that the Draft Law foresees the appointment of a commissioner who would deal with requests for access, in parallel with the Ombudsperson?

We have dilemmas regarding the law because it foresees the appointment of a commissioner for the Agency of Information and Privacy [the formation of the Agency for Information and Privacy, which would be led by the commissioner, is foreseen in the Draft Law on the Protection of Personal Data, which was approved after being reviewed once in the Assembly in September].

The Draft Law foresees that the commissioner would deal with the protection of personal data and simultaneously decide which documents could be made public. We’d need another mechanism, but in no way can we have the same person or institution providing protection for personal data and simultaneously responding to requests for accessing documents.

The appointment of a commissioner is an example taken from countries in the region, but the line between the right to be informed and the protection of privacy is a very fine one.

So you fear that the commissioner would use the justification of protecting privacy to deny requests for accessing documents?

Seeing how things are going in Kosovo, we fear that the commissioner would not be able to make this distinction properly. They would have to appoint someone who has integrity and is highly professional, to lead that institution. The appointed person would have to know how to make the distinction between the privacy of subjects and the rights of citizens to be informed. Here we also note the declaration of assets from public officials.

The Ministry of Infrastructure’s refusal to share the contract for the Ibrahim Rugova highway was done based on the justification that by publishing the contract they would endanger the confidentiality of the business subject. However, we don’t want to see how much money Bechtel-Enka has in its bank account, rather we want to know to what extent the road project has been financed from the pockets of Kosovo’s taxpayers.

This was also the case with the 53 million euro penalty that the government paid Bechtel-Enka. There is still no published information about how the penalty came about.

[In November 2017, Bechtel-Enka submitted a document to the Ministry requesting an additional 63 million euros because the working period had been extended for one year by the government. For spending related to the maintenance of management personnel necessary for the administration of the project, Bechtel-Enka requested 16.6 million euros; for equipment that would be used during this period, they requested 30.8 million euros; whereas for interruptions that happened during the 2014-17 period, they requested a further 10 million euros. After negotiation, the parties agreed upon the 53.4 million euro sum.]

I say it with responsibility, we fear that the commissioner would make it more difficult to access information.

The draft law foresees fines for violators of the law. Do you agree with this?

We agree that institutions should be fined for not respecting the law, despite the fact that the money that they would pay would come from our pocket, public funds. However, we hope that these fines will raise awareness, since other mechanisms are not working.K

This conversation has been edited for length and clarity. The interview was conducted in Albanian.

Feature image: Photo: Besarta Breznica / K2.0.

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