26.5.2015. CEAS Roundtable: System of security vetting in Serbia - imbalance with the Constitution?

CEAS, 26.5.2015.

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The Center for Euro-Atlantic Studies in Belgrade (CEAS) organized the round table: System of security vetting in Serbia- imbalance with the Constitution? Monday, 25 May.  The roundtable is the first in a series that will be organized by the CEAS project through adoption of the Law on security vetting- Towards greater compliance with the Constitution. The realization of this project is supported by the OSCE Mission in Serbia.

The aim of the roundtable is to start a dialogue and public debate of all stakeholders on the topic of security vetting in order to finalize a comprehensive analysis review of the situation, normative and practices of security vetting in the Republic of Serbia, which will provide some concrete solutions and adequate response to the current problems with which this topic is encountered.
Speakers at the roundtable were:Jelena Milić, Director of the Center for Euro-Atlantic Studies, who was also the moderator of the meeting, Karin Vagner, Senior Adviser for governance issues at the OSCE Mission in Serbia, Aleksandar Resanović, Deputy Commissioner for Information of Public Importance and Personal Data Protection, Saša Gajin, Associate Professor at the Law School of Union University in Belgrade, a member of the Governing Board of the Centre for Advanced Legal Studies (CUPS) and an OSCE expert on this project, as well as Irina Rizmal, researcher at the Centre for Euro-Atlantic Studies. The event was attended by members of the Interior Ministry, the Military Security Agency, the EU Delegation in Serbia, the Office of the National Security Council, the OSCE Mission in Serbia, diplomatic corps, NGOs and the media.

 

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The meeting was opened and moderated by Jelena Milić, director of CEAS. In the opening speech, she emphasized the importance of opening discussions on security vetting, on this occasion pointing out the important role of this topic for a comprehensive and efficient security system reform. Jelena Milić reminded present Ombudsman Saša Jankovićş and Commissioner for Information of Public Importance and Personal Data Protection Rodoljub Šabić’ş 14 points to the Law on Protection of Personal Data, where they assessed that practical situation regarding the protection of privacy differs significantly from the standards established by the Constitution of the Republic of Serbia and relevant international documents.
Jelena Milić specifically referred to the case that was mentioned in the media, that prior to the Summit with China and 16 countries in Central and Eastern Europe, held in December 2014, 3,500 physical entities were in the system of security vetting, including hotel employees hired for the Summit, volunteers, and even accredited journalists. What is in dispute in this case is what were the kinds of security vetting questions conducted for these individuals? When were they performed? Are these individuals informed about the fact that they are in the system of security vetting? Have they given their written consent? Are there some records kept considering this and in whose jurisdiction are they ? If the answer to all these questions is negative, Jelena pointed out that in this case there is a violation of Article 42 of the Constitution of Serbia. She also invited all present to participate actively in the discussion and to give as many draft comments on CEAS analysis of the security vetting, which will subsequently be analyzed and entered into the final version.
Ms. Karen Wagner, Senior Adviser for governance issues at the OSCE Mission in Serbia in brief opening remarks, thanked all those present that they accepted the invitation and expressed special gratitude to the Center for Euro-Atlantic Studies cooperation with OSCE in the project Adoption of security vetting- Towards greater compliance with the Constitution.

 

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Aleksandar Resanović, Deputy Commissioner for Information of Public Importance and Personal Data Protection pointed out that the Commissioner's initiative as a result of the aspect of personal data protection should start from the Constitution. Matter of security vetting in his view seems to be deliberately scattered in different laws and regulations. Issues of organization could be left for secondary legislation to regulate, but at the moment all laws are closely regulating the matter of security vetting to the given law relating to a given matter, said Resanović. He also commented that the processing of data in some situations is performed without legal basis or security vetting is carried out on the basis of a bylaw, such procedure certainly violates the law. In addition to the legal basis and the consent of the person it is necessary that purpose of data processing is clearly defined . He pointed out that in terms of the protection of personal data every person is entitled to know if he is under the security vetting process, as well as insight into the collected data, and that in practice the person usually can not come to an explanation of the reasons for negative vetting.
He questioned whether it was right that the person be deprived of their rights because the person possibly committed a crime. Given that such things are happening according to our norms governing security vetting. At the end of his speech he emphasized that it is necessary to adopt an umbrella law that would regulate this area and to create a comprehensive system.

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Saša Gajin, Associate Professor at the Law School of Union University in Belgrade and a member of the Governing Board of the Centre for Advanced Legal Studies (CUPS), as well as an OSCE expert on this project. In his speech he said that light should be shed on this topic not only from the point of application of the law on the protection of personal data, but also from the standpoint of other laws dealing with this issue, primarily the law on data secrecy and the law on free access to information of public importance. He also raised questions about the place of security vetting in the legal system. The system links with other laws relating employment, education and similar, and can not be viewed only from the perspective of protection of personal data, he thus pointed out that the issue of security vetting is linked to the principle of voluntariness against the individual to whom a security check is performed.
Commenting on the exposure of Resanović, Gajin expressed the view that it would not be possible to make a single text that would regulate all issues. He believes that laws / regulations pertaining to security vetting had to deal with prescribing two groups of rules- material, including the reasons for security vetting undertakeing, which must be specifically defined, the purpose of the vetting, storage and verification of data received etc. and formal rules. He supports this statement with the fact that in the case of special thematic units it is difficult to prescribe the necessary material conditions for data processing in all these special cases (segments).
Gajin in his closing argument pointed out that most of the areas that regulate security vetting must come to a radical change in regulations, while at the same Law on classified Information should serve as a pattern for further regulation of this area.
CEAS researcher, Irina Rizmal reflected on current normative which regulates the area of security vetting and emphasized that the matter of security vetting is regulated in several laws. She said that those are usually the laws that are governing the matter of employment in state bodies, especially in the army, police and security services, as well as the matter of education in schools that are viable for employment in these state bodies. Rizmal pointed out that it can be considered that the law on classified Information best defines, regulates, and sub complements a security check in the procedural sense, but only at the request of the national authorities for the purpose of access to classified information.
She pointed out that there is one question that remains - What is the level of security vetting carried out for the individuals or legal persons who are not public authority, such as, for example, members of private security, for which the Law on Private Security prescribe obligatory security check to obtain a license to perform their duties- which must be positive before their accession to a professional exam.
She also said that the CEAS team, while working on the analysis of the field of security vetting mentioned the Law on Citizenship, according to which the Ministry of Foreign Affairs may refuse a request for citizenship if there is a negative security vetting.
As an example of good practice in other states Irina pointed to the example of Finland, which in 2002 passed a law on security checks which first defined all those who are subject to security checks, where the law specifies state institutions, public companies, and legal entities that are registered or whose branch is located on the territory of Finland.

 

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The completion of debate was followed by constructive discussion from which emerged two ruling stances. One of the positions is the one put forward by Alexander Resanović from the office of the Commissioner for Information of Public Importance and Personal Data Protection, which is that Serbia needs an umbrella law that would regulate the area of security vetting, and that such law should only regulate principles which should adopt sectoral laws as lex specialis. The second paragraph, made by Sasa Gajin, states her belief that it is not possible to pass a law that would cover the whole matter of of security vetting.
Nataša Ignjatović, from the Police Directorate turned to the Law on Private Security, where she pointed out that the security vetting for employees of private security is conducted according to the Law on Weapons and Ammunition (in the introduction to the law) and the Law on Private Security introduces periodic security vetting of private security guards. She also noted that the draft Law on Police introduced for individuals and legal entities, the first level of security vetting, which consists of data processing and records in direct field work. Security questionnaire, that is going to be determined with a special decree, is stated as one of the issues.
Milorad Todorović, Secretary of the Ministry of Interior during the open discussion said that during the current Police Act only relevant Law relating to matters of security vetting is Law on Arms and Ammunition. He also pointed out that in addition to the Police Law there is other written Law adressing the issue of security vetting. He said that during the public hearings on the draft Law on the police all the suggestions of the Office of the Commissioner are adopted.
In her closing argument, Director Jelena Milić thanked all those present for their participation in the debate and emphasized that bearing in mind the increasing notice on amending the Constitution, which is expected to finally be on the agenda across the whole security system, for which a thorough reform of the administration and source should be the Constitution. She expressed the hope that potential changes of the Constitution would consider the entire security system reform in a much wider aspect and that a powerful system will be set up that is consistent with democratic values and the values of the international community.
The conference did not go unnoticed in the media, an article about the round table was published in a printed daily newspaper Danas. You can see the article here.
CEAS believes that the round table has been held in a very constructive atmosphere and that all the comments presented, both by state authorities, especially the Ministry of Interior, Office of the Commissioner for Information of Public Importance and Personal Data Protection, and other relevant actors together can contribute to a quality analysis of the current situation in the field of security vetting and that at the end of this project the best possible solutions will be found in the final version of CEAS analysis.