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    • Expert Discussion on the Law on Data Confidentiality Held in Belgrade

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    • Date: 25 August 2009

      The Law on Data Confidentiality is one of the key pieces of legislation still missing from the legal system of the Republic of Serbia. This law should include the foundation of a system to identify and store confidential data being of interest for Serbia’s national and public security. This is the principal reason why two non governmental organisations, Civic Initiatives and Centre for Civil-Military Relations decided to join forces and organise an expert debate concerning this matter on August 25, 2009.

      The organisers wanted to provide an opportunity to representatives of the Ministry of Justice and members of the working group which was tasked with formulating the draft, to explain their point of view on the most important (and controversial) aspects of the law proposal. This opportunity was also used by members of the independent oversight bodies and other prominent non-governmental organisations.

      Experts participating in the discussion agreed in principle how certain aspects of the proposal downgrade the achieved level of protection of human rights. Another cause of great concern was the proposal to make the National Security Council (NSC) body in charge of oversight of law’s application. Because NSC is only a support staff service to which such authority should not be given, this part of the proposal was strongly criticised. Many of the experts present insisted that proposal was an attempt to keep the power concentrated within the executive, disregarding the Parliament, judiciary, independent oversight bodies (State Ombudsman, Commissioner for Information of Public Importance and Personal Data Protection, Anti-Corruption Agency) and committed non-governmental organizations.

      The proposal introduces a series of clearances to access and use secret data. Yet certain institutions are being excluded, such as State Auditing Institution and Anti-Corruption Agency. This becomes all the more confusing as these institutions, when established, were granted the authority to access confidential data that falls under their field of operation. Therefore, this part of the proposal was strongly criticized by representatives of mentioned institutions. Another major issue is that the law still needs to be harmonized with the Constitution.

      Miljenko Dereta, Executive Director of Civic Initiatives opened the expert meeting. In his words of welcome he reminded those present how the event was in fact “a debate in public, not a public debate”, since it was Government’s obligation to organize such an event, before any proposal reaches National Assembly.

      Bogoljub Milosavljević, CCMR Associate and Professor at the Union University Faculty of Law was first to discuss one of the most contested issues, the limitation imposed upon independent state institutions (referring to State Ombudsman and Public Commissioner) to access confidential data, narrowing therefore the scope of authority entrusted to these institutions by the Constitution. Milosavljević argued that solutions contained in the proposal will thwart democratic control of the security sector. To prove his point, he spoke on a number of European standards implemented in this field, referring to Parliament’s right to act as a control body when other institutions are not entailed with the proper mechanisms of control. Two major reasons for the failure of democratic control, in Milosavljevic’s opinion therefore are: dangerous legacy of the security sector in Serbia, and, insufficient time for the establishment of competent institutions.

      In opinion of Miroslav Hadžić, President of CCMR Managerial Board, analysis of the legal provisions must be amended by the context analysis. With this proposal, state-centric comprehension of security is being brought back into the mainstream of thinking. Also, powers of the executive branch of government are being concentrated into the hands of an even narrower group of decision-makers, contrary to the practice in democratic societies. With a clear allusion to the laws passed prior to this proposal, Hadžić underlined how in Serbia, laws of great importance continue to be adopted without a proper public discussion, unless civil society forces the decision makers to act more transparently.

      President of the Board of Anti-Corruption Agency Čedomir Čupić agreed how social and political context affect the passing of any law. To this he added how authoritarian rule of the past regime continued the practice of misusing confidential data, adding to the list of human rights violations. Therefore, he would welcome only such proposal that would bring a clear end to such practice, by de-politisation and de-ideologisation of state services. Being the representative of Anti-Corruption Agency, Čupić didn’t miss to comment on the exclusion of this institution from the article 38, which comprises the list of actors entrusted with authority to control.

      Ombudsman Saša Janković believes how certain provisions of the proposal affect the quality of protection of human rights. He said how the basic standard proposal should have started from is the so-called “need to know principle”, meaning that every state official of the appropriate clearance level has the right to access confidential data falling under its institutions’ jurisdiction. Article 40 of the law proposed makes an important exception from this standard, since it imposes limitations on the right of Ombudsman and Public Commissioner to access information of public importance. This provision stands in conflict with laws that established both of these institutions, and finally, Constitution itself. Janković therefore opposed the law in principle, and argued for increasing capacities of independent state institutions. He finished by expressing his pessimism that disapproval will reach the group tasked with preparing the proposal, since this was not the case so far.

      State Secretary Gordana Pualić said how Ministry of Justice is ready to listen to criticism coming from all stakeholders and prepared to adopt all of their reasonable amendments. However, if these amendments call for changing whole provisions, then public should expect the proposal being pulled out of the procedure entirely. In her words, both of these possibilities will be taken into consideration.

      Report prepared by Maja Bjeloš, CCMR Research Associate

      Translated by Marko Savković

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