Can a citizen who is an applicant, regardless of whether he/she ha s exercised their right to file a complaint with the (Public Information) Commissioner, submit a request for initiating offence proceedings for an infraction committed under article 46, paragraph 1 point 6 of the Law on Free Access to information of Public Importance against an authorized person in a state body who does not act in line with provisions of article 38. Paragraph 2 point 1 of the law, which serves as the basis for launching offence proceedings, and is the Commissioner authorized to conduct the offence proceedings? (June 2007)
The question actually represents a request for an opinion concerning the application of provisions on launching and conducting offence proceedings as regulated by the Law on Minor Offences. The body authorized to give an opinion on the implementation of the Law on Minor Offences is the Justice Ministry under whose competence are affairs of state administration which refers to the legislation on minor offences, organization and work of the bodies for minor offences in line with article 7 of the Law on Ministries (Official Gazette of the Republic of Serbia no 43/2007).
In view of the fact that the query also refers to the implementation of the Law on Free Access to Information of Public Importance (Official Gazette of the Republic of Serbia no 120/04), or exercising the right to free access to information of public importance, the Public Information Commissioner, as the institution in charge of ensuring the exercise of this right, has conveyed his opinion to the applicant.
The applicant who, contrary to provisions of this law, has not received a response to the sought information of public interest, exercised the right to have insight in the document or to obtain a copy of the sought document can as a plaintiff, on the basis of the Law on Minor Offences submit a request to launch offence proceedings against the authorized person in public bodies, citing an infraction under article 38. Paragraph 2 point 1 and in connection with article 16, punishable under article 46, point 6 of the Law on Free Access to Information of Public Importance. The request is lodged with the body which is formally and territorially authorized to conduct the offence proceedings, in line with regulations which determine the organization and work of bodies dealing with minor offences.
The basis for launching offence proceedings by the plaintiff is contained in article 154, paragraph 2 and article 155 paragraphs 1 of the Law on Minor Offences (Official Gazette of the Republic of Serbia no. 101/2005) which entered into force in 2005, and which, under article 308, should have been applied as of January 1, 2007. To the Commissioner's knowledge the implementation of this law has been postponed, and therefore the bodies in charge of minor offences apply the Law on Minor Offences (Official Gazette of the Federal republic of Serbia no 44/89 and Official Gazette of the Republic of Serbia no 21/90, 1192, 6/93, 28/94, 16/97, 37/97, 36/98, 44/98, 62/01, 65/01 and 55/04). The provisions in this law which authorize the plaintiff to lodge a complaint are contained in article 72 paragraphs 1 and article 176 paragraphs 1. The body for conducting the minor offence proceedings under article 84 of the law in the first instance is the municipal magistrate, and in the second instance the chamber for minor offences.
The applicant can submit a demand for launching minor offence proceedings regardless of whether they have lodged a complaint with the Commissioner for non-compliance with the demand for access to information.
Therefore, the Commissioner has neither authorization nor decision-making power in complaints to decisions of bodies of the first instance in the minor offence proceedings. The Commissioner decides on complaints in administrative proceedings in cases where the right to free access to information of public importance has been infringed upon.