Source: “Danas”
PERSONAL STANCE
Can you imagine going to sleep with one ethnicity and waking up with another? Although putting such a “foolish” question as the opening line of a text dealing with a provision of the Criminal Code may seem as a digression, actually it is not. Such situation is not very likely; in fact it is not possible at all, is it? Of course, this is not because there are any issues with the freedom of each individual to change their awareness of their own ethnic affiliation. They, quite naturally, have the freedom to do so. Opinions on this issue evolved a long time ago and range from ultra-conservative ones, which view ethnicity as objectively determined, given and constant, to modern ones, which view ethnicity primarily as a matter of subjective feeling. But what is undisputable is that the awareness of one’s ethnic affiliation is formed by an individual on his or her own and that this awareness cannot be changed at the drop of a hat.
It appears, however, that some of our citizens have recently had quite the opposite experience. For example, they would have believed going into one particular night that they were Hungarians, only to “discover” in the morning they were actually Backa Croats. They would have gone to bed with the awareness of belonging to a certain ethnicity or having no ethnicity at all and the competent authorities would have “woken” them with a notice informing them they were entered in electoral rolls for national councils of ethnic minorities as members of an ethnicity they had never even dreamt of as their own. What their response was we do not know, but what we do know is that data on ethnicity are – with good reason – identified as particularly sensitive under the Personal Data Protection Law. We also know that, the law aside, many people are highly sensitive when it comes to facts relating to their ethnicity, so it is reasonable to assume that this experience would have been disturbing or unpleasant for many of them.
For these reasons, this event merits thorough analysis. Undoubtedly, elections for National Councils of ethnic minorities are vital in terms of democratic legitimatisation of a country. Successful implementation of those elections, with direct participation of as many citizens belonging to ethnic minorities as possible, is clearly a national and social interest and requires maximum mobilisation of all available resources, and not only public ones. It is therefore understandable that the authorities responsible for the organisation and implementation of these elections – the Ministry of Human and Minority Rights and local self-governments – expected, encouraged and sought assistance from the media, the non-governmental sector and even the political parties, fully aware of the risk inherent in such increased “activism”. For example, the risk of illegal processing of personal data, of forming special, “private”, political-party and similar data files on the basis of photocopied requests or personal documents or lists of persons with addresses, phone numbers etc., all under the guise of providing assistance, was all too obvious.
As the Commissioner for Information of Public Importance and Personal Data Protection, I timely drew attention to the need to take these risks into consideration. When ensuing events confirmed this, my associates and I took appropriate specific steps. But, even if some risks had to be taken, there are things that simply could not be overlooked. One of these is the fact that the sole responsibility and power for maintaining special electoral rolls rests with the Ministry of Human and Minority Rights and local self-governments and that only these authorities are authorised to process the personal data required in order to form special electoral rolls. Even more importantly, the individual has the sole and exclusive right to file an application for inclusion in a special electoral roll (on a requisite form) and this cannot be done by anyone else on his or her behalf, subject to relevant requirements set out in the law.
Information on registration of individuals with special electoral rolls against their will indicates there have been possible grave violations of human rights. Even if we set aside the number of persons affected – although it was apparently quite high – this shows that there are some who still believe that citizens can be herded like cattle, moved from stable to stable, registered or re-registered or treated in any other way at a whim, of course without asking them what they think about it.
In view of such underestimation of anyone’s personality and privacy, it should be reminded that Article 146 of Serbia’s Criminal Code – which establishes unauthorised collection of personal data as a criminal offence – reads as follows: “Persons who, without proper authorisation, obtain, communicate or use for purposes other than those specified during data collection any personal data collected, processed and used pursuant to the Law shall be fined or incarcerated for up to one year.
“A fine or sentence referred to in paragraph 1 of this Article shall also be pronounced to persons who illegally collect citizens’ personal data or use such illegally collected data.
“If an offence referred to in paragraph 1 of this Article is committed by an official in the exercise of his/her duties, he/she shall be incarcerated for up to three years.”
The quoted provision of the Criminal Code has never been applied in practice, although there have been occasions when it would have been appropriate. And if the “ethnical awareness raising” described above (which certainly could not have happened without the involvement of officials) is not sufficient reason for the Ministry of Internal Affairs, the public prosecutor’s office and courts to demonstrate its application in practice, it seems opportune to ask: what is, ultimately, the purpose of that provision?
