no. 011-00-24/2021-02 date: 23.8. 2021

Acting within the legally prescribed competence[1], the Commissioner for the Protection of Equality, gives

OPINION

on the Draft Law on Amendments and Supplements to the Law on Free Access to Information of Public Importance

The Ministry of State Administration and Local Self-Government sent a letter number 011-00-146 / 2021-01, dated August 10, 2021, submitted to the Commissioner for the Protection of Equality the Draft Law on Amendments to the Law on Free Access to Information of Public Importance, with an explanation (hereinafter: the Draft Law), for the purpose of giving an opinion.

Acting on this letter, we give an opinion on the Draft Law, from the aspect of the scope of work of the Commissioner for the Protection of Equality.

The provision of Article 18, paragraph 1, item 5) of the Draft Law, which amends Article 31 of the current Law, as one of the reasons for termination of duty in paragraph 1, item 5) of this Article states that the Commissioner’ duty shall be terminated if his/her legal capacity is limited by a final decision of the court. The Commissioner for the Protection of Equality has been pointing out for years that it is necessary to improve the regulations related to deprivation of legal capacity because these regulations support the medical approach and are not fully harmonized with international and European standards. Bearing in mind the above, we are of the opinion that the existing wording from the currently valid Law on Free Access to Information of Public Importance (“Official Gazette of RS”, No. 120/04, 54/07, 104/09 and 36/10) is more adequate and should not be changed. Namely, in the valid law, in Article 31, paragraph 3, it is prescribed that one of the reasons for dismissal of the Commissioner is the permanent loss of working ability. This formulation is also prescribed in Article 176 of the Labor Law[2], which stipulates that an employee terminates employment regardless of his will and the will of the employer if, among other things, in the manner prescribed by law, it is determined that the employee has lost his ability to work – on the day of the submission of the final decision on determining the loss of working capacity.

Article 23 of the Draft Law proposes an amendment to Article 38 of the current Law, so that, among other things, the deletion of para. 4 – 8. of this article. The Commissioner first points out that Article 38 para. 4 – 8 of the current law provides for the protection of an employee in a public authority that provides access to information of public importance for which access cannot be restricted, that is that the employee cannot therefore be held accountable or suffer harmful consequences if the information indicates the existence of corruption, abuse of power, unreasonable disposal of public funds and illegal act or conduct of public authorities. The Proponent in the Explanation of the Draft Law, explaining certain legal solutions, explains the deletion of these paragraphs by the fact that with the entry into force of the Law on Protection of Whistleblowers in 2014, the need to provide protection to employees in the manner prescribed in para. 4 – 8 of this Article of the Law has ceased.

[1] Law on Prohibition of Discrimination (“Official Gazette of RS”, No. 22/09 and 52/21), Article 1 and Article 33, paragraph 1, item 7)

[2] Labor Law (“Official Gazette of RS”, No. 24/05, 61/05, 54/09, 32/13, 75/14, 13/17 – CC decision and 113/17)

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Jankovic