Based on the Opinion of the Agency for protection of personal data and free access to information from 10 June 2015, stating that the Police Directorate must not enable the Commission for monitoring actions of the competent state authorities regarding the investigations of old and recent cases of intimidation and violence against journalists, murders of journalists and attacks on media property insight into personal data of natural persons recorded in investigation records and the previous proceeding, NGO Human Rights Action concludes:
1. The Agency’s opinion was not reasoned – The Agency has not established its position in any applicable legal provision that the Criminal Procedure Code (CPC), and not the Personal Data Protection Law must be applied to submission of specific information to the Commission;
2. HRA analysis of the Personal Data Protection Law shows that its Article 8, paragraph 1, states that this Law, not the CPC , applies to the disputed information, concerning public security and pre-trial proceedings;
3. Even if the Agency was right, and the CPC and its Article 284 quoted by the Agency in its Opinion should be applied to specific information, this should not be an obstacle that Commission members, once they accept by signature the command of the police officer that they must maintain the confidentiality of the data submitted under threat of prosecution, get that information, without any need to change the Law (CPC) in order to explicitly enable this right.
Commission for monitoring actions of the competent state authorities regarding the investigations of journalistic attacks has been founded by the Government in public interest, which allows, based on the Personal Data Protection Law, Article 10, paragraph 2, item 4, that the data are processed without the consent of the person to whom they refer. In addition, Commission members have received permission for access to classified documents in possession of public bodies. The Commission cannot fulfil the task for which it was established without reviewing the complete operation of the authorities in investigating attacks on journalists, some of which are still in the pre-trial investigation phase or preliminary proceedings.
This issue has not been raised in Serbia at all, but the Commission for investigating murders of journalists, chaired by a journalist, has made insight into all police records.
Bearing in mind that it is necessary for the Commission to obtain insight into all relevant police records and that a year and a half passed since its establishment, HRA expects the Government to promptly provide the Commission such insight and thus enable it to publish their findings.
The Opinion of the Agency for protection of personal data and free access to information (in Montenegrin) is available here.
Tea Gorjanc Prelević
HRA executive director
1. Article 8, paragraph 1: „This law, save for the provisions on supervision, shall not apply to the processing of personal data for the purposes of defence, national and public security nor in pre-trial and criminal proceedings, unless otherwise provided by a separate law.“ HRA emphasizes that this paragraph previously explicitly escribed that it shall not apply to „public security“ and „preliminary criminal proceedings“, but has been amended in the meantime. The term „processing of personal data“ includes „exercising insight“ and „making available“ pursuant to Article 9, paragraph 1, item 2 of the Personal Data Protection Law (Official Gazette of Montenegro 79/2008, 70/2009 and 44/2012).
2. Article 284: „Should it be in the interests of criminal proceedings, keeping information as secret, public order, moral or protection of personal or family life of the injured party or the accused person, the person acting in an official capacity who is undertaking an evidence gathering action shall order the persons who are being examined or who are present while the abovementioned actions are being carried out, or who inspect the files of the investigation, to keep as secret certain facts or information they have learned in the course of proceedings and shall advise them that any disclosure of a secret constitutes a criminal offence. This order shall be entered into the record on evidence-related action or shall be noted in the inspected files, along with the signature of the person cautioned.“ Article 58, paragraph 3 of the Criminal Procedure Code states: „The injured party, the subsidiary prosecutor and the private prosecutor shall be entitled to inspect files and objects serving as evidence.“ Therefore, the Commission members could simply be authorised to inspect files by damaged journalists, for example Jovanović family, i.e. be enabled this in accordance with Article 284 of the Criminal procedure Code (Official Gazette of Montenegro, no. 57/2009, 49/2010, 47/2014 – Decision US CG 2/2015 – Constitutional Court of Montenegro decision).