Law on Police Must Not be Placed Above the Law on Free Access to Information
The Humanitarian Law Center (HLC) believes that the Law on Police is not contributing enough to establishing public control over the police work and that certain provisions of this law are confronting the Law on Free Access to Information. This is unacceptable since the Law on Free Access to Information is considered a special law and it has priority in comparison with the Law on Police.
The HLC is pointing to the danger of giving a right to the Minister of Police to intervene with directions in his relations with the public information institutions, since that act gives him the discretionary authorities, which can result in the arbitrary interpretation or misuse of the law. In that sense, the Law on Police seriously limits the right of “everyone” to receive the information asked, and it also brings inequity among those who have right to the objective informing. By doing that, the public information institutions, “individuals”, and legal entities get certain greater rights compared to the right of everyone, entitled by the Law on Free Access to Information.
The Law on Police uses certain expressions such as “objective informing” (Article 5, Paragraph 1), “founded interest” (Article 5, Paragraph 3), and “confidential information” (Article 5, Paragraph 3), which are highly unfounded since they can mean many things and the they allow the arbitrary interpretation in the essential area for imposing civil control over the public authority institutions. The HLC believes that the law must clearly emphasize the obligation of the police to truly, completely, and in the right moment inform the public, instead of using notions, which allow arbitrary interpretation of the provisions. The concept of the “founded interest” should be taken out of the law because it misses its ratio legis. A person has expressed his or her interest in some information by applying for receiving that information, and the nature of request will determine whether or not his/her request will be approved and it should not depend on the fact whether or not police have determined the “founded interest”. The concept of “confidential information” has its grounds in the law. However, the criteria for proclaiming certain information confidential should be clearly regulated because the burden of proof (onus proband) has to be on the side of the police.
The HLC believes that considering individual interest, it is completely unjustified to set a term of 60 days for receiving a response regarding the request for receiving personal data (Article 78, Paragraph 2, Law on Police). The Law on Free Access to Information clearly establishes the objective term of 15 days for receiving the response regarding the request (Article 16, paragraph 1). Exclusively, if it is not possible due to the justified reasons, the Article 16, Paragraph 34 allows additional term of 40 days.
The HLC expects the legislative to intervene according to the abovementioned remarks and change the disputable provisions. That is especially significant if the government has free access to establishing the democratic and transparent governing system.