Commissioner for Information of Public Importance and Personal Data Protection, Rodoljub Sabic, has confirmed that he has received a complaint from the Serbian Association of Judges and a number of individual complaints with respect to withholding information on the procedure of choosing the judges and personal data processing in their reappointment procedure. The Commissioner shall decide on complaints within the period of time defined under the law. In addition, the Commissioner shall, without delay, submit a proposal for an estimate of the constitutionality of certain articles of the Law on Personal Data Protection to the Constitutional Court of the Republic of Serbia.
Rodoljub Sabic, Commisioner, has stated the following:
‘’The complaint of the Serbian Association of Judges is based on the Law on Free Access to Information, because the Serbian Association of Judges has not received any reply from the High Council of Justice regarding their request for several pieces of information in the process of reappointment of judges, submitted in December last year. I will explain my attitude with respect to the grounds for complaint in my decision on the complaint, but even now I can say that the lack of any reply on the request is in itself an infringement of the Law and an additional bad contribution to clearing up some open issues.
Some complaints have been filed based on the Law on Personal Data Protection, obviously due to the information that the data received from the Security Information Agency have been processed in the procedure of reappointment of judges. In relation to that, in conversations with the President of the High Council of Justice and the Minister of Justice I have received assurance that these data have not been used. Of course under the Law my associates and I are obliged to investigate the election material. It is well known that from my point of view processing personal data no matter by who is allowed only in compliance to provisions of the Constitution of the Republic of Serbia. Article 42 of the Constitution is unambiguous and clearly states that the grounds for processing data have to be determined by the Law. That is why the use of a Decree or any other secondary piece of legislation to determine the grounds for data processing by SIA or anyone else would be in contravention of the Constitution.
However, Article 13 of the Law on Personal Data Protection states that personal data processing may be performed under secondary pieces of legislation. Following a public discussion and the receipt of the opinion of the CE (together with limitations of control powers of the Commissioner, which have been criticized by me at the time, and which have recently been taken out effect) this ‘’solution’’ has appeared in the text of the Law in the course of the adoption process quite inexplicably. In my opinion this is an obvious case of unconstitutionality, even though the attitudes presented in the course of the discussion that has ensued indicate that some government bodies have a different opinion, I will submit a proposal for a review of the constitutionality of this provision of the Law to the Constitutional Court of the Republic of Serbia.’’
