Polona Tepina, legal adviserInformation Commissioner of Slovenia

Beograd, April 3 2012

INDEPENDENCE OF THEINFORMATION COMMISSIONER OF SLOVENIA

AND ITS RELATION TO THE PARLIAMENT

brief introduction - competenciessimilar to Serbian

„ Commissioner for Information of Public Importance and Personal Data Protection”

• Two constitutional, human rights- ACCESS TO PUBLIC DOCUMENTS- PERSONAL DATA PROTECTION

• History- COMMISSIONER FOR ACCESS TO PUBLIC DOCUMENTS- DATA PROTECTION INSPECTORATE

INFORMATION COMMISSIONER

EU DIRECTIVE

INDEPENDENT

UNDER MINISTRY OF JUSTICE

internationally guarateed independenceDirective 95/46 on protection of personal data and free movement of such data -> demanded independent body!

GERMANY (Court of Justice of the EU, C 518/07)‑•independent bodies must be able to act:

– completely free from any external influence - direct or indirect; from above (e.g. politics) or from below (e.g. public)

– objectively and impartially, without taking any instructions or pressure•independence does not mean absolutely no parliamentary influence!

– appointment or dismissal by the parliament or the government– the legislator defines the powers / competencies– obligation to report the activities to the parliament

HUNGARY (Commission, infringement proceedings)•the term of the Commissioner was ended prematurely•possibility that the prime minister and the president dismiss the new Commissioner on arbitrary grounds

legal frameworkInformation Commissioner Act • establishment, functioning and position of the Commissioner• autonomous and independent state body• regulates:

– competencies– funds– appointment and dismissal– staff– annual reports– …

Personal Data Protection Act, Access to Public Information Act, Constitutional Court Act,…

statutory mechanisms for cooperation with the parliament

- appointment / dismissal- confirming funds for operation- annual reports

- consultation on draft laws and regulations- constitutional review of laws, regulations and general acts,

adopted to perform public powers

- control over the Parliament in areas of Commissioner’s competence - access to documents- protection of personal data

appointment and dismissalAPPOINTMENT• Parliament upon proposal of the President• 5 year's term, 1 reappointment• state official• conditions – set by law

DISMISSAL• Parliament upon proposal of the President• early dismissal – only for reasons provided by the Law

INCOMPATIBILITY• not holding office in political parties, state bodies, local self-government bodies and

trade unions• not functions incompatible with the holding of a public office

STAFF (knowledge authonomy)• expert and administrative-technical staff• selecting own staff, Deputies, Secretary General• establishing own organizational structure

• funds for operation are provided from the State budget

• determined by the Parliament • on proposal of the Information Commissioner• the role of the Government (Ministry of Finance)

financial independence

annual reports• send annual report to the Parliament – at latest until

the end of May• publishes the report on the web site • presented by the Commissioner or her Deputies to the

Parliamentary Committee (e.g. for justice, public administration and local self-government) + debate

• CONSULTATION on draft laws and regulations- Commissioner not engaged in intersectoral consultation (between

Governmental bodies) – however may give his opinion- Parliament may:

- ask the Commissioner for opinion- invite the Commissioner for a consultation

• CONSTITUTIONAL REVIEW of laws, regulations and general acts, adopted to perform public powers– only if a question of constitutionality or legality arises in the concrete case

handled by the Commissioner – very important function, with which the Commissioner may actually

perform a substantive control over the legislator– Ministry of Justice proposed removing this competence (fortunately

decided not to)

opinions, consultation, contitutional review

public trust in information commissioner

Thank you

for your attention!

www.ip-rs.si