The Commissioner for Information of Public Importance and Personal Data Protection has sent a letter to the Minister of Construction, Transport and Infrastructure urging for amendments and modifications to the Law on State Land Survey and Cadastre in order to remedy as soon as possible the identified issues with personal data processing in the cadastre.
The Commissioner previously conducted an inspection of compliance with the Law on Personal Data Protection at the Republic Geodetic Authority and drew attention to identified irregularities in personal data processing, namely that numerous personal data of title holders are made available to third parties without proper legal basis and without weighing whether the processing is proportionate and done for the specified purpose.
Under the Constitution of the Republic of Serbia and the Law on Personal Data Protection, data may be processed on the basis of a law or on the basis of consent of the data subject. Furthermore, the Decision of the Constitutional Court of Serbia I Uz No. 41/2010 of 6 July 2012, which was passed in a procedure initiated by the Commissioner several years ago, reaffirmed that collection, keeping, processing and use of personal data can be regulated only by a law and not by secondary legislation.
However, in practice, such as it is, functioning of the cadastre, including issuing of extracts, is in effect governed by the Bylaw on Compilation and Maintenance of Real Estate Cadastre. Not only is this a piece of secondary legislation, but is also dates all the way back to 1999, which means it predates both the Law on Personal Data Protection and the Law on State Land Survey and Cadastre by a good ten years.
While the Commissioner does not question and indeed upholds the principles of transparency, assurance and legal certainty, which the Law on State Land Survey and Cadastre promotes, he nevertheless believes it is obvious they should not be "enforced" through the application of the said Bylaw. Due to the supremacy of the Constitution and the ensuing need to ensure respect for the citizens' rights enshrined in the Constitution and relevant laws, the existing regulations governing the operation of the cadastre will have to be brought in compliance with the applicable provisions of the Constitution of the Republic of Serbia and the Law on Personal Data Protection. This needs to be done as soon as possible through appropriate amendments to the Law on State Land Survey and Cadastre. It goes without saying that any provisions governing the purpose and manner of personal data processing and the type and scope of title holders' personal data that can be processed or made available to third parties (the requirement to demonstrate legal interest) must strictly comply with the principles set out in Article 8 of the Law on Personal Data Protection, including in particular the principles of processing for intended purpose and proportionality of personal data processing.