Rodoljub Šabić, Commissioner for Information of Public Importance
Minutes from the tenth session of the State Council of Prosecutors from November 2009, which has been published last week in the media, has opened up additional sensitive questions regarding general election of prosecutors and judges. Chairlady of the High Judiciary Council Nata Mesarović has once again opposed hearsays that BIA has checked the candidates for judges, and from the State Council of Prosecutors they pointed out that checks of special prosecutors by BIA have been provided in Article 16 of the Law on Organization and Authorizations of State Authorities in Suppressing Organized Crime and other Heavy Criminal Acts (Zondosok ).
Commissioner for Information of Public Importance and Personal Data Protection, Rodoljub Šabić, noted that the Law does not envisage check of candidates for prosecutors’ positions and passed decision to execute supervision over implementation of the Personal Data Protection Act in the procedure of electing prosecutors and their deputies.
Does Article 16 of the Law on Organization and Authorizations of State Authorities in Suppressing Organized Crime and other Heavy Criminal Acts offer enough of a base for processing data, performed by BIA?
That provision pertains to the very narrow circle of persons, to persons from one Prosecutor’s Office and two courts, and even in their case not regarding re-election, because it pertains to already elected persons. Especially, there is no base for its application on all participants of the general elections procedure. Already at first sight one can see that this is about legally-technically extremely poorly written, unclear and imprecise provision, which can hardly present reliable base for anything. So, in that Article, titled „Property Status Data” pertaining to the obligation „of persons performing function, that is, performing jobs in Special Prosecutor’s Office and special court departments” to deliver to the Agency for Fight Against Corruption complete and exact data on their property, a provision on safety check of those persons has also been inserted. It is not clear whether that check pertains to property data, or to something else. And what else? Besides that, it has been determined that the method of performing those checks and data recording shall be regulated by the Governmental Act. I am asking – by what Act? And isn’t regulation of personal data protection by the Governmental Act contrary to the constitutional provision according to which data processing shall be regulated solely by the law?
Do property status data have anything to do with the worthiness of the candidates or is worthiness understood broader than acquiring property in a way making the holder of the judiciary function unworthy?
It is sure that the method of acquiring property can be related to honesty, so for one of the elements of worthiness concept. But it is also sure that the worthiness concept also includes other characteristics like conscientiousness, fairness and impartiality, stateliness...
Is it disputable if BIA gave data to DVT on Special Prosecutors and deputies in the period when they were simultaneously, due to re-election, also candidates for Prosecutors’ functions?
Each personal data processing which is not based on strict legal base or on consent of the person whose data are in question, is at least disputable.
Why is the legal provision on safety checks so imprecise?
It is unpermittedly imprecise. Regardless of warnings of the Citizens’ Protector and me, we do not have a single more precise provision. Not in a single law do we have defined the very concept of security check. Actually we have it only in the Data Secrecy Act, but it pertains to extremely narrow field – access to secret data. For all the other situations we do not have defined the concept of check, or precisely determined what actions, measures or activities it understands, as well as for determining for what facts shall those actions and measures be undertaken. There is unpermittedly too much space for „free interpreting”.
What would be legal consequences of illegal and unconstitutional personal data processing?
As first we should eliminate possible dilemmas. As I said, processing data on anyone’s personality, without the knowledge of that person is permitted only when strictly provided by the law. It is not disputable that BIA and other security authorities, as well as Public Prosecutor’s Offices are authorized to deal in such data processing, but for legally determined purposes– in order to oppose criminal and in order to protect state security. However DVT is not a prosecutor’s office, and it is not any prosecution authority. On the contrary, that is an authority the purpose of which is to protect prosecutor’s independence. Not a single legal provision envisages that in the general prosecutors’ election procedure DVT shall process candidates’ data which have been previously checked by BIA, nor have the necessary legal authorizations been determined for that purpose for BIA. Personal data processing without legal ground, or without consent of the person whose data are in question in that and in any other case would be an infringement. Depending on the specific circumstances, secret processing can also be criminal act of unauthorized personal data processing.