Source: Nedeljni Telegraf
Headline: What is Tadic allowed to keep secret
Subheading: The Commissioner for Information of Public Importance and the
Ombudsman require access to top secrets
- It is necessary to implement the Law on Confidential Information in order to determine who and under which circumstances decides that information or documents are confidential, how they are stored, who has access to them, and how they are rendered public (Dr. Dejan Milenkovic
- It is necessary to determine who would be doing security checks of employees working with confidential data, and that is not clear in this law proposal (Dr. Dejan Milenkovic)
The first Serbian Law on Confidential Information has entered the Parliament in a secretive way without the usual public debate and led to a real media war within high-ranking government institutions. Rodoljub Sabic, the Commissioner for Information of Public Importance and Personal Data Protection, and Sasa Jankovic, the Ombudsman, claim that the Government's law proposal limits their scope of work and leads to a possibility for crime and human rights violations to be classified as confidential. Vladimir Cvijan, the General Secretary to the President and the Chairman of the Government's work panel for this law proposal, claims that the Commissioner and the Ombudsman want to be able to access all of the state secrets which would make them more powerful than the President and the Prime Minister!
Subheading: The President knows the greatest number of secrets
Legal experts believe that that would not be possible as the President is the Chairman of the Defense Council and, thus, higher in authority than all the ministers who control the secret services, as well as the directors of civil and military intelligence and security agencies who are controlled by the government. Both the President and the Prime Minister receive daily reports by the intelligence and the security agencies, and, ‘within the scope of their authority', they can request additional data. On the other hand, neither the Commissioner nor the Ombudsman can control the President, the Prime Minister, the Parliament, the Government, the Supreme Court, and the Constitutional Court. Not even the Parliamentary Defense and Security Board can get more detailed information from the intelligence agencies since the members of the Board are not obligated to keep a secret unlike in certain other European parliaments and hence cannot be given access. A lengthy debate has been going on about this issue as it is not clear who can and how control the work of the secret services and who can access the information they gather.
The expert for intelligent and counterintelligence agencies Prof. Dr. Milan Mihajlkovski of the Faculty for Security emphasizes that the highest-ranking state functionaries have access to various information according to the laws that regulate the work of the agencies, but no where in the world can they have access to the identities of the agencies' collaborators as they are considered top secret.
Dr. Dejan Milenkovic from the Lawyers' Committee for Human Rights who left the team in charge of this law in protest reminds us that the Commissioner and the Ombudsman already have access to all information despite their level of confidentiality... at least in theory.
He emphasizes that the Commissioner for Information of Public Importance does not have the power to render confidential information public, but he has the authority to order a state institution to provide the requested information to a citizen who is asking for it.
Subheading: Dodgy Questions
However, Milenkovic mentions that the Government, which is supposed to ensure that the Commissioner and the Ombudsman can work in an unobstructed manner, fails to help when it comes to the dodgiest questions of corruption and power abuse:
- Some politicians are obviously bothered by the current and, in practice, very limited powers of independent state institutions and they aim to strip them of any real authority. For example, the Government which is obligated to ensure that the orders of the Commissioner are followed through failed to do so in 20 to 30 cases.
The Law on Confidential Information is necessary so as to finally establish who and under which circumstances has a right to determine which information or document is confidential in nature, where those documents are kept, who has a right to use them, and how they become declassified, Milenkovic mentions:
- If we do want to join the European Union, we have to develop a way of exchanging information with the institutions and bodies of the EU since the EU also has its secrets. The lines of communication with NATO should also not be forgotten, as Serbia is a member of The Partnership for Peace. When you take a closer look at the European laws related to confidential information, they are all more-or-less similar as they depend on NATO and EU regulations. Confidential information is no longer characterized as either military, official, or business; there is only one category of state secret with 4 levels of confidentiality. Milenkovic also says that the law has to define who and under which circumstances can access secrets, as well as who performs security checks of personnel working with the confidential information. The law proposal is not clear when it comes to these issues. The representatives of the Government's team who worked on this proposal claim that their goal was to sift through over 400 different directives in this field and write a law based on European norms. However, the members of this team told us that the main problem arose when they discussed secret services and the right of the Commissioner and the Ombudsman to access information on secret police and security forces operations, the way they are conducted, the methodology used, and the names of collaborators and undercover agents.
- If anyone had a right to know about a certain operation that is underway and who is participating in it, where is the secrecy then? We would have no informants and collaborators left in parts of the country that are most affected by terrorism - members of the state security services comment.
Subheading: Impeding an Investigation
Milenkovic also confirmed that the powers of the Commissioner and the Ombudsman, who were represented in the Government's team, were the main issue all along resulting in the representative leaving the team in March:
- In Article 40, the powers of the Commissioner and the Ombudsman are suspended when it comes to information on various investigative actions until those are finalized. While the investigation is taking place, no information can be obtained. What this means is clear in the case of the journalist Dada Vujasinovic's death where numerous information were hidden for years under a pretense that the investigation is underway.
According to Milenkovic, this law proposal suspends certain powers that the Commissioner and the Ombudsman had related to 'the methods of obtaining intelligence and security information', which represents an issue when it comes to authorized and unauthorized phone tapping that no one will be able to control any longer:
- The identity of the current and former security service informants remains unavailable 'since that is necessary in order to protect them and their families'. At first glace this sounds reasonable, as no one should suffer for being an informant. However, the unreasonable part is the fact that the state does not trust its own institutions. How can the Commissioner and the Ombudsman jeopardize investigative actions unless they are illegal and illegitimate.Boris Subasic
Headline: Crime and Corruption as State Secrets
Subheading: Penalty for falsely classifying information up to 50 thousand dinars
Subheading: A journalist disclosing confidential information could get up to 15 years of imprisonment
Behind the phrases ‘the investigation is underway' and ‘special methods and actions' grossest human rights violations can be hidden; human rights of those who should be protected by the Commissioner and the Ombudsman.
Very often in Serbia ‘secrets' hide the inadequacy, failure, and abuse, even crime and corruption. On the other hand, information that normally should be kept secret often come out in the general public - Rodoljub Sabic, the Commissioner for Information of Public Importance and Personal Data protection states.
- For years I have been campaigning for a normal, modern law on secrets. I was even a member of the expert group that came up with a law proposal two years ago which was widely accepted by the expert public, the Coalition for Free Information Access, and thousands of citizens who signed the petition. Despite the fact that the proposal was presented in the Parliament, it was never even considered by the MPs.
On the other hand, Sabic emphasizes that the institutions of the Ombudsman and the Commissioner were not formally included in the creation of the current law proposal despite the fact that that is their everyday scope of work:
- We were represented on the team for a period of time, but the representative resigned after a while because certain unprecedented suggestions and ideas were considered. We have not been represented on the team ever since. In the rest of the democratic world, consulting independent auditing institutions is a common practice. Unfortunately, that is not the case here. The attitudes and opinions of the Ombudsman and the Commissioner were well known to the other members of the team, but they were ignored and the proposal was sent to the Parliament for MPs to consider it without any public debate or consult.
Sabic mentions that the limitations in the current law proposal are opposed to all international conventions and that instead of offering real solutions the proposal just creates an illusion:
- It was suggested that the implementation of this law resides in the hands of some sort of a Government department which is a solution not seen anywhere in the world. Laymen ought to know that no Government department has or can have controlling and evaluation authority. Without the authority, there will not be any control or appraisal.
The current law proposal lets numerous individuals decide what is a secret and lets them classify information, as well as limits the power of the Commissioner and the Ombudsman. This is justified with very ‘fluid' reasons of ‘the investigation is under way' and ‘special methods and actions are being used', warns Sabic:
- There are numerous things that can even make you laugh when reading this proposal. For example, if the Anti-Corruption Agency wants to investigate an offence within their line work and they need information that was classified by a functionary whose offence they are looking into, they have to ask the police and the intelligence agency for access and, in case they are not grated one, they would have to take them to court!
The law also outlines very strict penalties for disclosing classified information despite the possibility of human rights violations or crime being labeled as secret:
- If the media or anyone else for that matter discloses a secret they can end up in prison for up to 15 years. At the same, the functionary who classified information that is obviously not secretive gets a monetary penalty from 5 to 50 thousand dinars. This disproportion does not merit a comment.
Headline: The controlled control the controllers
According to expert statements, only the president of the Supreme Court of Serbia will have access to all secrets, which raises doubts in the public as this is the jurisdiction of the Casation Court that is still being formed. The Commissioner for Information of Public Importance says:
- No one, including the president of the Supreme Court, should have access to literally all secrets, just to the ones that are necessary for him to do his job. At the moment, the Ombudsman and the Commissioner have a right to access every document necessary for them to perform their duties without limitations, but according to the current law proposal they would no longer have the access to any document that is classified. They will now have a ‘right to request access', which could be denied in some cases.
The justification for this is that ‘the democratic principles prescribe that no one should have access to all secret information'.
- In the present law proposal there are clauses that do not exist anywhere else in the democratic world as is the case with the clause that states that the decision to grant access to confidential information to the Ombudsman and the Commissioner is made by institutions which they are supposed to control and supervise - warns Sabic - Nowhere in the world has an idea of allowing a lower-ranking institution to control and suspend a supervisory institution ever before been proposed.
The Ombudsman and the Commissioner are free to complain to the internal affairs department of the institution that suspended their request or to the president of the Supreme Court.
