Conditions in which our Commissioner for Information and his foreign colleagues work are as different as night and day.
The National Assembly has recently adopted the Law on Personal Data Protection, the Foreign Citizens Law and the Law on Protection of State Borders. Those are particularly interesting laws for many of our citizens, since they were singled out as the laws the adoption of which is one of the conditions for the much desired visa waiver regime with the EU and at the same time, of course, for the EU association.
Although I have the same wishes, I do not think I can justify some almost triumphalistic statements in which the importance of the adoption of “European” laws itself is emphasized. On the contrary, I think it is not only excessive, but harmful as well, because it represents the thing known in jargon as “selling hot air”.
Simply, it is not good to give unrealistically large importance to formal passing of the law. The new laws can provide wished effects only if they receive passing marks from the aspect of harmonization with the European legal standards and their implementation in real life.
As regards the Law on Personal Data Protection, this is why the main question is what the situation is really like in this regard. If we take into account the harmonization with the European standards, the famous Article 45 of the Law will still be in the focus. It is commendable that the first proposed, unbelievably poor formulation, which gave security structures (and who knows whom else) full discretion in this domain, has been changed. However, although this new formulation is better in principle than the previous one, it is still based on the idea that somebody may suspend and limit the authorities of monitoring bodies set by law. The international standards envisage complete independence of monitoring bodies, thus this arrangement does not exist anywhere else except in our country. In the light of this fact, it should be appreciated how much it is (un)believable that it can receive the passing mark from the EU observers when the time comes. Of course, there is a possibility to eliminate the controversial arrangement from legal order until that time comes.
As regards real conditions for the implementation of the Law, the arrangement which envisages that current Commissioner for Information of Public Importance takes over functions of monitoring authority and protection of rights as early as on 1 January 2009 is unavoidable. This arrangement was taken from experiences of other countries and it had very good results.
Unfortunately, the fact that the conditions in which our Commissioner and his foreign colleagues work are as different as night and day has not been taken into account. The Serbian Commissioner has been facing large problems for years, which include, among other things, the specific obstruction of work done by the Serbian Government. The Commissioner faced large and constantly growing workload even within the framework of his former competences.
The number of cases registered by the Commissioner has exceeded five thousand a long time ago and some of these cases are extremely complex and delicate. At the same time, the Commissioner works in completely inadequate conditions with several times smaller number of people in his office than envisaged.
I had an opportunity to see a smile of disbelief on faces of my foreign colleagues every time I told them I perform my work with only seven associates (two technical secretaries, one driver and four lawyers). To illustrate this, the “informacijski pooblascenec” (Information Commissioner) in Slovenia, a country with four times less inhabitants (and problems), works with four times more people. For example, the Slovenian Commissioner has ten inspectors and the Serbian has none and it should be clear to everyone that the number of his associates compared to the workload is tragicomically small. This is why there are several hundreds of unsolved cases even at this moment and their solving requires several months' work without inflow of new cases and without new duties. At the same time, the Government has not only been chronically ignoring for years logistic, spatial and other Commissioner's problems for which it is competent, but has not activated mechanisms important for exercise of the right to access to information in spite of repeated requests. It cannot be understood why the Government does not see that, apart from the fact that it objectively obstructs the implementation of the Law by this, it also seriously harms to its own reputation. Does nobody think that this irrational “tug of war” with the Association of Serbian Journalists and the Independent Association of Serbian Journalists over denying of information in connection with “sexual harassment of sheep” on the a former minister's property is harmful to the reputation of the Government? Not to mention numerous reaction of the public, which considers failure to publish all information in connection with the highway Horgos-Pozega as an attack on common sense. The “inventory” of the relations between the Government and the Commissioner so far leads to one conclusion. It is absurd to expect that the Commissioner could respond in the right way to additional, much harder, larger and complex tasks in existing conditions, in addition to current tasks. In countries with much smaller number of inhabitants, such tasks are performed by much better equipped authorities with several times larger number of employees.
If the stated situation does not change without delay, it would endanger anyway minimum chances to provide the implementation of the Law on Personal Data Protection and the achieved level of the implementation of the Law on Free Access to Information. This is why the situation should change. And the Serbian Government owes to the public answer to the question whether it will really happen; the Government in general and particularly those representatives who insist on the “huge importance” of the fact that the Assembly adopted the Law on Personal Data Protection and that it would itself bring us closer to visa waiver regime with the EU and to Europe.