Professionalism and integrity are qualifying me for the office of the Commissioner

It is a question whether the election of the new Commissioner for Information of Public Importance and Personal Data Protection will be a cause of a new political “fight” between the government and the opposition. We could get an answer to this question soon considering that the competition will be completed on Tuesday, at least by what the Chairperson of the competent Assembly Committee announced. Although there are several of them, it seems that the main “game” will have two candidates. Current President of the Misdemeanour Court in Belgrade Milan Marinovic, who has the support of several professional associations and ruling SNS party and Nevena Ruzic, Assistant to the Secretary General of the Commissioner’s Office, whose candidacy is supported by 100 non-governmental organisations and several opposition parliamentary groups. In her Istinomer interview, Nevena Ruzic, who has been working in the Commissioner’s Office for ten years, estimates that despite the number of the organisations supporting her candidacy “she is an underdog in this race”, because the ruling SNS party supports the other candidate, who is elected in the Assembly of Serbia.

 

Why are you joining this race if you are an underdog?

 

Because I think it is important that someone who believes they meet the requirements should run for office, despite everything. I believe it is important that we discuss what is relevant, whether the expertise and experience are relevant, and we should have an opportunity to hear of the alternatives. For example, the primary criticism of the public procurement is that if you only have one bidder, then it means that the remaining bidders know the bid is rigged. I do not believe this is a pre-arranged thing, I believe that the possibility of choice is still there, therefore I agreed to join the race.

 

Which parameters make you believe that the thing is not pre-arranged considering that the ruling majority has their candidate and that we also have the experience from previous appointments in two similar authorities, as one of them is now headed by a former member and a donor of SNS?

 

The appointment of the Ombudsman was not that transparent, and the appointment of Director of the Anti-Corruption Agency maybe was not that transparent, and perhaps now we have a situation to rectify some mistakes, we always have that as an option.

 

When do you say to rectify the mistakes, who should do that?

 

The ruling coalition in the Serbian Assembly. I believe it that because in the meantime this method was, among other things, criticised in the EC Reports. It has been said it is not right that this procedure is non-transparent. The European Union has also adopted more strict rules related to the personal data protection, and they require that the heads of these authorities should be people who are related to the very profession, precisely from the field of the personal data protection.

 

I just thought of the message of the Parliament Speaker, who when asked a question on this topic, answer cynically “Commissioner is not a hereditary term of office”. Should not that message be clear enough?

 

Objectively speaking, she has a point, because that is really not a hereditary term of office, but I am also not Rodoljub Sabic’s cousin, and we are not at all related, so I personally do not identify myself with this statement, although it might have been a message meant for someone from the institution who would run for office. I do not see myself in that definition of the successor.

 

Pavle Dimitrijevic from CRTA organisation in his recent appearance on N1 TV when he spoke about the appointment of the Commissioner, mentioned that the fact you possess the security clearance of the highest level demonstrates that the state and the system trust you. In the context of this appointment and the experience we have with appointments of other officials in independent and controlling authorities, are you under the impression that the fact the system trusts you is relevant or is it relevant whether the ruling party trusts you?

 

I do not know, I am a legal professional. I believe in systems rather than in some transitory things.

 

But you live in this system?

 

Yes, I think it is important that the system trusts you, but then in this specific case both system and political party are in the mix, because that clearance was issued in 2017, meaning after 2012, so it is not from the period that it could be disputed, nor it was issued long time ago, as it is periodically inspected.

 

Clearance is more of a metaphor. The question is whether it is more important that the ruling party trusts you rather than the system?

 

Perhaps, perhaps. I was not thinking about it, it might be. One small correction for that security clearance – highest level is the state secret, and only Commissioner and his Deputies had that, strictly confidential is the clearance I have which is also very high.

 

All right. When we talk about the election of the Commissioner, I would like to recall the words of a former head of this institution, Rodoljub Sabic, who in his last-year interview for weekly “Vreme” had said that we live in the reduced context where everything is reduced to the battle in the political arena. To what extent was the matter of appointing the head of an independent institution reduced here to a political struggle instead of a battle for the head of the institution based on the competencies and professionalism.

 

I personally have an opinion on this, which is maybe not relevant here, but in this matter, I have decided to believe that this system is in place, that the system of making decisions based on expertise exists, and is not reduced only to the battle. I am not familiar with the life of the political parties, I do not understand whether the appointment of the one or the other candidate would be a victory of one side and a failure of the other hand, or it is about the appointment that would be to the benefit of all individuals.

 

However, for ten years you have been working in the institution that had been placed in the political arena. Let me remind you that the Commissioner was accused of toppling Vucic, participating in conspiracies, and all this after he had requested the information on the demolition in Hercegovacka. So I am not referring to your personal opinion now but the atmosphere in which you work and live in.

 

It is a fact that since 2012 it might have intensified compared to earlier, but none of the governments, none of the ruling coalitions was ever inclined toward the Commissioner. Let me remind you of the very beginning when the establishing of the institution was an issue, and also appointing a person, planning the salaries, giving premises, so they would approve premises, but not adequate ones, then the funds were not allocated, no possibility of amending the human resource plan after the new competence was given, and so on. For 15 years in the row we may say for each year – so you see we never got an answer to these letters, when we asked the Ministry of Finance, for example, for the human resource plan, for three times we did not get an answer to some specific question we had which happened since 2004, 2005, 2006, and now until 2019.

 

I have found that during the government of Vojislav Kostunica, the Minister of Justice criticised the Commissioner that he is threatening the state security, and then G17 estimated that the Commissioner is undermining the economic and financial system of the country, and then DS that Sabic is to blame for everything…

 

But this is an indicator that you are doing your job well when the parties who are in power are always judging you for something and always criticising, which is simply maybe as expected. But when they had become an opposition they realised the value of some institution and it happened that a party that ardently criticised the work of the authority or precisely the Commissioner, after becoming the opposition party, would use the right of asking for opinion in the process of adopting the law and during a debate on the law that we had given an opinion for, but it was not adopted.

 

I think that the former Commissioner said publically that the greatest user of your office services ever was SNS party when it was the opposition.

 

Yes, yes, as regards filing complaints, in those situations they have been submitting requests regularly. They have, I think, always used these templates, they received no responses, they were rejected, and they have been using that mechanism.

 

How do you explain then that as the government they run serious campaigns against the Commissioner’s Office, and do that in the Parliament, in tabloids, let me remind you of MP Martinovic who was most prominent in that, and then he claimed that someone completely opposite from Sabic should be elected as the Commissioner.

 

I can explain that by the logic we often think that rules are nice as long as they do not apply to us and this is our mantra not only in political but also in everyday life. We all know someone who thinks that rules are all right as long as they are not applied to them.

Is it also indicative of independent institutions, including the Commissioner for Information of Public Importance, which despite the fact it has been working for 15 years, is being still treated as the system error, instead of its integral part?

 

I would prefer it if this is not the case, because it would demonstrate the anomaly of the entire system, but, indeed, that independent institutions are not favoured, although independent authorities are actually the extended arm of the Assembly, they are made so the Assembly can carry out the oversight function more easily.

 

Do you think this Assembly is carrying out the oversight function?

 

Considering how many times the Commissioner’s Report was considered, since the establishment of the institution to this day and what was done on this occasion, the answer might be no, but if that is a reason to stop doing something, again I would say that is not the reason.

 

The Assembly has not only failed to consider the Commissioner’s Report regularly but also in its discussion has been running the campaign against the Commissioner, namely against someone it should find helpful and beneficial?

 

That is true. Several MPs, including the Speaker of the National Assembly, made comments on salaries and I think the data they used was not even correct, but that is also our reality. This refers to your previous question whether to believe in the legal system or it all depends on the political party. So when I say the legal system, and our reality says that the legal system depends on the political parties, then we are running in circles, asking a question whom to believe. We love to live by rules, by something we have learned in textbooks and books, what we aimed for, but the reality is denying us. We have an example that in Belgrade, one entire settlement is really questionable regarding building and exploitation permits, but in reality, it exists.

 

When we refer to the state’s relation towards the institution or authorities in the state (it is hard to separate it), can we judge it from the fact that the prosecution is implementing proceedings against the Commissioner because you have on the request of the journalists demanded the resume of the prosecutor assigned in the case of demolition in Hercegovacka, or the information on the property of the officials or biographies of people that are suspected to be related to war crimes. Is it yet a step further about those attacks we have referred to from the age of G17, DS and DSS?

 

Republic Public Prosecutor Office does that from the very start. Ever since it was established that the government authorities could not file a complaint to the Administrative Court against the decision of the Commissioner, when the Commissioner accepted the appeal, that is a consequence of the administrative proceeding, and the first instance body is in subordinated position to the second instance body and so on. Whether it is a good thing to do, from the point of view of the legal profession, I would say it is always good whenever someone believes that the public interest might have been damaged. But if we look at the data, whether the same treatment applies to all authorities, we can get a lot from the data, but it can also take us to a false lead.

 

What do the data say?

 

The number of complaints, for example, can tell us if there are many proceedings or can it demonstrate if the Commissioner is his decisions in damaging the public interest and due to that we have to have the reaction of the public prosecutor. But another parameter that should be taken into account – if the Republic Public Prosecutor does that for other bodies in relation to those who also have jurisdiction to dispute the decision before the Administrative Court for the purpose of protecting the public interest? But then it turns out it fails to use it in relation to other bodies.

 

These cases are really interesting. Why, for example, the public may not know what is in the resume of the prosecutor assigned in some case?

 

Now when we look at this case, what is also relevant besides this? It is essential that some other biographies of some other prosecutors are online at the website, and it tells us about the contradictions in the procedure and then you can really ask a question if this is a matter of putting pressure, if this is a matter of disrespecting the institution or it is a matter of a person’s beliefs.

 

What do you think?

 

I think it is a mixture of everything. All cases are different. Sometimes it happens the suspicion is justified, that it is important to protect the public interest, and that is would be legitimate. Sometimes, as you have said for the case of this biography, it depends on the situation and maybe some idea to protect something.

 

But should not these data be indicative enough of the atmosphere the media are working in and you as an institution, including the information that you cannot learn about the number of the years of service of the President elected in direct elections?

 

In that specific case, the Republic Public Prosecutor did not file a complaint against the Commissioner but the action on the decision of the Commissioner was not initiated which is disputable.

 

I want to say that the fact the public cannot learn about the years of service of the official for whom the people voted…

 

…that is disputable, but again it is our reality what to do on this occasion – should we insist on the enforcement of the law as we do? The mechanism prescribes it the government should do it. For the last 15 years, the government has not once initiated the mechanism for enforcing the commissioner’s decisions. Which also tells us about the relationship that is continual.

 

What is your impression when we talk about this government and its relation towards the independent institutions? Do you feel that another logic of actions is now applied by appointing the top people in institutions, to somehow reduce their activity, and “to force them to go illegal”?

 

The difference between these independent bodies is also important. Their jurisdiction is also important. For example, the term of office and performance of the Ombudsman or Anti-Corruption Agency somehow fall under the domain of political maturity. They adopt the recommendations, I refer to the Ombudsman as an institution, and not some decisions that are enforceable in some proceedings. So, their performance depends on the political maturity of the society to accept the recommendations, while the Commissioner is very limited in its jurisdiction. Our decisions, namely the decisions of the Commissioner, are very legal and therefore binding. They are also very limited to the area of free access to information and personal data protection, it is an explicitly regulated procedure and there are no exceptions here. Commissioner has to process each complaint. For example, when the Ombudsman’s term of office has expired after they elected the new one, they had the interim phase when one person was Acting Ombudsman, and they had a sudden drop of the cases they received. That did not happen to us because the complaints were ongoing. We expected that we would have the same.

 

I am referring here to the role in society. For example, the other day a boy was stabbed because he was wearing a T-shirt with the antifascist logo. You have to agree it is also a violation of citizens’ rights. And because it’s a political activity, no action from Ombudsman. Because of this, I am asking is the government logic to appoint top people so as to place the institution into some kind of dormancy?

 

I would prefer not to answer. I do not know how to answer that question, because I do not know if that is a logic behind or, if any, what the logic would be.

 

How do we measure the success of the institution of the Commissioner? Is it the fact there are 40 times more requests since it was founded, or the citizens’ and the public need to be informed that has increased, or the number of the resolved cases?

 

There are multiple measures of success. First of all, the citizens recognise us, and then the citizens’ associations and political parties, especially when they are in the opposition. They recognise us as an instrument and important mechanism for protecting the right of access to information. The second indicator of success is the proactive foundation, which is visible from our website from the point of view of free access. From the point of view of personal data protection, it would be surprising if some law would appear in the Assembly procedure without being seen in our Office and without opinion given by the Commissioner. Statistics is another thing, and the quality of that statistics is – whether the opinions are accepted or not accepted. For example, in the situations when we had strained relations, the antagonism towards the Commissioner, ministries were regularly sending the draft laws, opinions, had meetings with us, submitted amendments, depending on the laws, so that is again a measure of success, and we talk more about the personal data protection.

 

If we talk about the cooperation with other independent institutions, for example, the Ombudsman, I think that the former Commissioner had said how the cooperation with him had stopped, and before it was evident in public.

 

Well yes, it has stopped.

 

How do you explain that, is it a natural on not so natural state?

 

I do not know. I do not know why it stopped.

 

What is the next step in the procedure? We have candidates, the criteria which were at first established, that the person running for office cannot be employed in some other government authority at the moment of candidacy, was then excluded, which in fact would have disqualified you. Was that the intention of it?

 

That is, in fact, a legislative provision. I think that matter is regulated by the legislative provision as such.

The day we are doing this interview, should be, as announced by the Chairperson of the competent Assembly Committee, the day of closing the competition. What are the next steps in the process?

 

I would like to know that as well if nothing else but for planning my personal time. In that call for competition it was mentioned that the Committee will do the interviews, but we do not know when, and we do not if these candidacies would afterwards be deliberated, if the Committee is convened and then deliberates on each candidacy individually or as a whole, if it would decide to invite all the candidates or just some, if that interview would be recorded and somehow made available to the public or not, and when and whether they would establish the proposal following the Committee’s proposal for the candidate or candidates, and the National Assembly is electing by absolute majority votes. We do not know all particularities of this process what is actually looks like, its duration, is it time-limited, we also do not know.

 

It is interesting that for six months we do not have a competition, and that following the Progress Report, everything is promptly set to motion.

 

And only seven days for the deadline, only five working days to collect all documents required, this was not easy to collect at all, at least not for me.

 

Both Sabic and Sasa Jankovic were dragged into the political arena because there were campaigns against them in the Assembly, and the ruling parties and their satellites had run campaigns in the tabloids, placing them in the context of the opposition supporters, although they were not in the opposition, as they just did their job. Are you aware of what you are about to enter if you were to be elected?

 

I think I am partially aware. I think no one can fathom the depths of it. I am not sure if I am aware of everything it entails. The part which I can anticipate seems bearable to me since my biography in not politically interesting in that sense. I do not have party membership, I have no preferences to the one or the other political party, so this I do not have. My qualifications are precisely the expertise and the integrity, the fact I am cut off from any party. The associations of citizens and I have prepared two sets of documentation candidacy required and any party that would have called saying they would propose me, I would have had it delivered to them.

 

In your opinion, is it relevant who is the head of this institution, or it would work in the same way regardless of who is appointed? 

 

I have had the luxury to work with many bodies for personal data protection and free access around the globe, especially in Europe, for several years, and I could see the changes when the new person would come, and a lot depends on the person, maybe not in political sense, which we have been talking so far, but in relation to the activities. It is relevant meaning how much attention they will devote to rights, trainings, what will be the materials, which cases will they investigate. The change is always visible when you have a new person, also considering if this person has ideas or not, these are the basic things, which is unquestionably reflected on the work of the authority. In our case, additionally arguable, apart from everything, is that we have to think about the political majority or minority, which is additionally aggravating. The challenge for someone in this profession might be that sometimes you cannot grasp why there is resistance to some common-sense idea.

 

But you will definitely remain working here whatever the outcome of the competition?

 

Whatever the outcome of the competition might be, I am staying.