- We are literally at the infant stage of introducing a personal data protection system of sorts. We lack legislation relevant for data protection in some vulnerable areas such as biometrics, video surveillance and private security providers, and yet we see it fit to enact new, contentious and risk-ridden legislative instruments like the Law on Electronic Communications – Mr. Rodoljub Sabic, Commissioner for Information of Public Importance, warned in his interview for the "Blic" daily. The Constitutional Court has not reviewed the contentious Law on Electronic Communications for more than a year: Rodoljub Sabic
The Law brought up by Commissioner Sabic in his opening lines enables for example (in Article 128) phone tapping even without a court order, and all this in a country that has recently witnessed political persecution and wars, while lustration in secret services has been non-existent. The Commissioner, as the head of one of the few independent institutions in the country, has long been trying to change something that is obviously incompatible with human rights and freedoms.
Asked by "Blic" whether politicians also lodged complaints alleging surveillance and wiretapping, Mr. Sabic said:
- I have heard politicians and public officials venting their concerns they are being wiretapped only on informal occasions. There have been no formal complaints.
To what extent is the privacy of Serbian citizens protected when directors of secret services are allowed to wiretap us without court orders?
- In fact, what is at issue here is access to the so-called retained data. Those are data that show whom you called and from where, how long you talked, with whom you exchanged text messages and which websites you accessed and they often reveal more than the content of an intercepted phone call. Starting from the assumption that the Constitution guarantees confidentiality of letters and other means of communication, the Ombudsman and I have made a motion before the Constitutional Court to assess the constitutionality od the provisions of the Law on Electronic Communications which enable access to such data without court orders. The much-anticipated ruling of the Constitutional Court will provide a relevant answer to your question.
Where do we stand compared with the European as regards personal data protection?
- We have enacted the Personal Data Protection Law, although it is not fully harmonised with EU standards. As regards secondary legislation, only that within the Commissioner's sphere of competence have been passed, while those for which executive authorities are responsible have either been passed with delays or have not been passed at all. A Personal Data Protection Strategy has been adopted, but an action plan on its implementation is lacking.
As regards an independent body mandated to ensure implementation of European standards, suffice it to say that the resources available to the Serbian Commissioner are lower even than the resources available to similar authorities in former Yugoslav republics, not to mention other European countries. Little effort has been made to educate both the public and those who process personal data and what has been done is a far cry from what is actually needed. It is necessary to change the mentality. Transition countries that had taken a much faster and more sound approach to this task than us had robust education programs in place, which in some cases included even modifications of school curricula.
You have recently imposed fines on the Tax Administration and the Ministry of Economy for failure to comply with information requests. What is the effect of fines that are in fact paid by the citizens, because they are paid from the national budget?
- I have imposed dozens of fines. They have not been without effect. On a number of occasions, those fines have resulted in the provision of previously withheld information. These are not fines in the strict sense of the word, but rather penalties in execution proceedings, because they apply to public authorities and legal entities and are paid from the budget. Of course, they should be backed up by infringement fines payable by responsible persons – managers – out of their own pocket; however, this issue is out of the Commissioner's hands under the law.
Which authority has been the subject of the largest number of complaints for violation of the Law on Free Access to Information?
- Most of the complaints are lodged against national, Republic-level authorities. The most frequent cause for complaint is withholding of information on disposal of public money and resources. Of the various potential uses of freedom of information, citizens and the media have been quick to recognize the anti-corruption aspect.
What is the situation concerning the Law on Private Investigators, which apparently allows everyone to follow, spy and collect data? You made a request for the Law to be withdrawn.
- I reacted because I believe that, from the viewpoint of personal data protection, that Law has major shortcomings in terms of constitutionality and consistency. It is imprecise and vague. It has not yet been formally withdrawn from the procedure, but after my talks with Minister Ivica Dacic, officials of the Ministry of Internal Affairs and representatives of private investigators, I am assured it will be neither enacted not indeed debated in its present form.
Are you able to perform your work?
- I do not feel threatened. Among other things, my office implies certain inconvenience, risks, threats etc. The Commissioner is able to perform his functions, taking into account the fact that even the barest of necessities for my work were not available for many years.
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Caricature of treatment of the law by public authorities
From this distance, how do you feel about the case of the blackened text in the agreement signed with "Fiat"?
- That story resembles a caricature of proper observance of the law by public authorities. It is of course undisputable that certain information that constitutes Fiat's commercial secret could be withheld from the public. This can be done properly from the legal point of view only subject to the requirements, for the reasons and according to the procedure provided for in the law. Instead, the Ministry ignored the request of the Anti-corruption Council and then complied with the Commissioner's order by providing a copy of the Agreement in which the entire text was blackened. For this it offered the scandalous explanation that the censoring was done by Fiat's management. Acting on requests submitted to Serbian authorities under Serbian laws is exclusively within the remit of those authorities. That they should be replaced in this by officers of private companies – and foreign ones at that – is absolutely inadmissible.
