In connection with the continuing debate in the National Assembly concerning the amendments to the Bill on Personal Data Protection, the Commissioner for Information of Public Importance called for the provision referred to in paragraph 2 of Article 45 to be eliminated. The Commissioner said again that this provision, which envisaged that the Commissioner's authorities to have access to data, collection of data and premises, which are necessary for normal performing of the function, “can be limited because of state or public security…”, left scope for numerous abuses. In connection with this, Commissioner Rodoljub Šabić also said the following:

“This provision leaves wide possibilities to undefined, but undoubtedly large number of subjects for unauthorized tapping, recording, interception of the Internet and other forms of illegal processing of personal data without any risk because they can stop every possible attempt of the competent body to prevent it simply by making up reasons referred to in paragraph 2 of Article 45. Those who should be monitored under the law are thus left the possibility to decide themselves whether they will let those who should monitor them do their work. This is unsustainable, legally and logically.

This provision is on unacceptably low level, not just conceptually, but normatively and technically as well, because it remains completely unclear who could and how, de facto or by any procedure, limit the Ombudsman's authorities. Thus, even if it was generally acceptable, formulated in this way it brings dilemmas and uncertainty in legal order.

Claims that such arrangement is compliant with the relevant international documents show a lack of understanding of the difference between the right of citizens to protection and authorities of the body competent for providing the protection. Of course, international documents leave a possibility to deny protection to citizens in certain cases, but existence of legal conditions for that is evaluated by and the right and information are denied by the authority which is established for protection and not by those against which the protection is guaranteed. Otherwise, there is no protection at all. This is why the arrangement referred to in paragraph 2 of Article 45 grossly and incomprehensibly contradicts the position and authorities envisaged for independent monitoring bodies which should provide the protection of the right by, for example, Article 28 of the Directive 95/46 EC or Article 1 of the Additional Protocol to the Convention on Protection of Persons against Automatic Processing of Personal Data. I do not know what can explain the non-acceptance of these generally accepted standards and if all other possibilities are excluded it can probably be explained by the incompetence of the civil servants engaged in preparation of the bill who may not be aware that they confuse the backer of the law.

In any case, I think that the provision referred to in paragraph 2 of Article 45 defined in this way must not remain in the text of the Law. It is absolutely irrelevant whether the protection of citizens' rights is provided by the Commissioner for information or some other body, the important thing is that this protection is real. It would harm the reputation of the country and human rights if the new law offered to the citizens protection which would depend on a good will of those against whose activities, among other things, the protection is being introduced.”