IV. Governance issues
The Act No. 275/2006 on Public Administration Information Systems (20 April 2006) provides a framework for the development of public authorities' information systems. On 30 September 2009 the amendment to the above-mentioned Act was agreed by the Slovak Government. The relevant amendment was approved in December in the National Council of the Slovak Republic and signed by the President of the Slovak Republic.1
The Act No. 211/2000 Coll. on Free Access to Information was approved by the Parliament in May 2000. It sets broad rules on disclosure of information held by all "obligees", which means state agencies (including parliament, government, courts, etc.) municipalities, legal entities established by law and by state agencies, as well as legal entities and natural persons that have been given the power by law to make decisions in the area of public administration.2 There are limitations on information that (a) is classified; (b) constitutes a trade, bank, or tax secret; (c) is a tax secret; (d) is a bank secret; (e) is intellectual property; (f) would violate privacy; (g) was obtained "from a person not required by law to provide information, who upon notification of the Obligee instructed the Obligee in writing not to disclose information"; (h) is information published regularly by the Obligee under a special act; (i) "concerns the decision-making power of the courts and law enforcement bodies"; or (j) identifies localities of protected animals and plants, minerals and fossils. Information requests to obligees must be disposed without undue delay, but not later than ten days. Appeals are made to higher agencies and can be reviewed by an administrative court.3
During the implementation of this Act in practice, difficulties have been found in some cases regarding appeals against decisions made by obligees who do not have their own superiors, e.g., municipalities, the National Property Fund of SR, etc. In these cases, it is not clear which is the appropriate appellate body. For example, in the case of municipalities, the provisions of two different acts collide. On one hand, the Act on Free Access to Information states in Article 19 that, "If it is a decision of the municipal office, the decision on the appeal shall be made by the mayor." In practice, this is not possible because the municipal office is also an executive body of the mayor. On the other hand, Act No. 369/1990 Coll. on Municipalities states in Article 13 that, "in administrative proceedings the mayor is the administrative body." This means that the mayor is the only body allowed to make first-degree administrative decisions. The municipal office is not allowed to do this. Under Article 27 of the Act on Municipalities, the court is the appellate body to the mayor's decision on the rights and responsibilities of natural persons or legal entities in matters of self-governance, including the disclosure of information. During the more than three years of implementing the Act on Free Access to Information there has been no adjudication that would unify these two contradictory provisions of two different acts. Nonetheless, the courts have accepted a doctrine that the mayor's decision on the appellate level is subject to judicial review by the competent Regional Court according to the relevant provisions of Act No. 99/1963 Coll. on Civil Court Procedure regulating judicial review of administrative decisions. The fact remains that the courts have no time limit within which they must decide, and the first-instance proceedings led by the Regional Court may be followed by appellate proceedings before the Supreme Court. The consequence is that the process for obtaining information may be considerably extended, while the value of the information originally requested declines in value.
There are also separate requirements for disclosure of environmental information that cover private organisations. These became effective on 1 January 20014 and revoked Act 171/1998 Coll. of the National Council on Free Access to Environmental Information. In February 2001, the government approved a draft law on Protection of Confidential Information to harmonise the handling of classified documents with NATO standards, despite the Data Protection Commissioner's objections that it violated human rights.5
In July 2005, it was reported that the Interior Ministry sought to change the existing free access to information law, which gives citizens the right to get information from public and municipal authorities. If the changes are introduced, a public official who withholds information will no longer be committing an offence. At present, an official who fails to provide information requested by a citizen can be fined up to €1,650 and be suspended from his job for up to two years. In the Interior Ministry's proposal, however, the offence clause would be left out of the freedom of information law. Jana Pôbišová, of the Interior Ministry, said that this is because the state or municipal employees do not act as private entities, but rather in the name of legal entities, the state, or municipal authorities, and should therefore not be punished as individuals. Activists claim, however, that if the clause is eliminated, it will be virtually impossible to identify who is responsible for withholding information.6
Following a number of public procurement cases in which allegations of corruption were raised during the past years, the newly established government of the Slovak Republic has submitted a draft act for departmental discussion amending and supplementing the Act 40/1964 Coll., the Civil Code and Act No. 211/2000 Coll., on Freedom of Information and amending of certain laws (Freedom of Information Act).7
According to the explanatory memorandum, the aim of the amendment is to ensure a proactive approach by the public authorities to increase the pressure on public authorities by making information available relating to the management of public resources and their responsibility for the management of public resources, and also to ensure better public awareness, and ultimately increase transparency with respect to the management of public resources.
Based on the draft amendment to the Civil Code, if one party to a written contract is a person required to make information available under Article 2 of the Freedom of Information Act and that contains information that is acquired with public funds or the use of public funds or the management of state or municipal property, or property of a higher territorial unit, or the European Union, shall enter into effect the day after its publication on the website of the person liable under the special regulation. If the person has not yet created the website, the contract shall be published in the Commercial Journal.
Exceptions to this provision are contracts for protection of life, health, property or the environment; these shall enter into force, if necessary, without prior publication.
The publication duty shall apply to all contracts which have been concluded prior to entry into force of the amendment; however, their effectiveness shall not be assessed in terms of the new regulation. The proposed entry into force date of the amendment is 1 December 2010 (1 January 2011 with regard to part of its content).
The Act No. 215/2004 Coll. on the Protection of Confidential Information states that Confidential Information Lists are created by the head of each authority that deals with confidential information. That means that one of the duties of the head of the authority is to determine the fundamental scope of classified information, and unless he or she determines otherwise, to decide on the period of, change to, and expiration of, the security classification level. The information can be classified as confidential information only in fields stipulated by the Government of the Slovak Republic in regulation No. 216/2004.
On 19 August 2002, the National Council of the Slovak Republic adopted the Act on Access to Documents Concerning the Activities of the State Security Services between 1939 and 1989 and on Establishment of the Institute of National Memory Act No. 553/2002 Coll. (National Memory Act). The National Memory Act allows Slovak citizens and foreigners to request access to documents containing information about the applicants that was collected and maintained by the state security services between 1939 and 1989. The Act purports to provide historians, victims, and their relatives with access to documents collected by the former state security services.8
The National Memory Act sets forth the principles for evidence, collection, registration, disclosure, and management of certain documents created and maintained by the security services of the German Third Reich and the former Soviet Union as well as the Czechoslovak and Slovak security agencies in the so-called "totality era," the period from 18 April 1939, to 31 December 1989. Specifically, the National Memory Act deals with documents concerning crimes committed against Slovak nationals as well as Slovak citizens of other nationalities. The crimes in question include (i) Nazi crimes, (ii) communist crimes, (iii) other crimes against peace or humanity, or war crimes, and (iv) other retaliations for political reasons.9
In 2009 the Supreme Court of the Slovak Republic decided in a case initiated by a natural person against the National Memory Institute, a public law institution established by the National Memory Act to carry out the collection, preservation, maintenance, and public divulgence of the relevant archives.
The case concerned the public disclosure of the plaintiff's personal data stored in the secret police archives under the category of "confidants" i.e., persons deemed to be of interest to the secret police, but who were not knowingly collaborating with the secret service as were informants, agents, etc. The plaintiff asserted that his privacy had been violated on the grounds that by publicly disclosing his personal data on the website of the National Memory Institute archives, the archives had created the chance that – in the eyes of the broader public opinion – his position of "confidant" might be interchanged or mistakenly confused with the position of people collaborating with the secret police as, e.g., agents and informants.10 The legal action was filed under the Civil Code regulation on personal privacy protection, Section 11 et seq. The Supreme Court of the Slovak Republic, deciding on the appeal of the Nation's Memory Institute, upheld the decision of the regional court of second instance. The decision prohibited the National Memory Institute from disclosing publicly, in any form, the personal data of the plaintiff – deriving from the list of personal files of the members of security units (No. 23461) – without the plaintiff's consent.
This decision summarises the line of argumentation that has been followed by the courts in the past and, in certain aspects, represents a landmark decision that may be used in the future as a precedent for further privacy protection actions seeking termination of the disclosure of a "confidante's" data.
The decision is interesting in two other aspects. Firstly, it appears that the Supreme Court has succumbed to the layperson's interpretation of the term "confidante", which sometimes is identified with collaborating persons. In fact, the term "confidante" had been excluded from this category of persons by the Act, as well as by the case-law of the Constitutional Court. Thus, the Supreme Court based the infringement of the plaintiff's privacy (dignity) on the mere possibility of mistaken identity with collaborating persons. Secondly, the decision may be considered somewhat controversial taking into account that it dismissed the statutory duty of the National Memory Institute to disclose the transcripts of records, which represents a statutory licence for the disclosure of personal data of natural persons.
In 2008, a new Act No. 167/2008 Coll. on Periodicals and Agency News Service and the amendment and supplementing of certain acts (Press Act)11 replaced the previously Act. No. 81/1966 Coll. on Periodical Press and other Means of Mass Communication as amended.
In particular, the new Press Act provides the right of the publisher of periodical press and news agency to get and publish information about public authorities.12 It establishes the duty of the publisher to protect the source and the content of the information. It further regulates the responsibility of the publisher and the news agency for the content of the information published,
Beside reaffirming the Slovak legal system's already established right to ask that false statements of facts about a person or legal entity be corrected, the new Press Act introduced the right of reply and right of supplementary information. These new rights should reflect the conclusions drawn in the public debate concerning how to strike a fair balance between the right of free expression and the press, on the one hand, and the right of protection of name and reputation of natural persons and legal entities on the other.
The right of reply is currently being reconsidered by the present Ministry of Culture and Tourism within the planned amendment to the Press Act, as the Slovak Press Syndicate raised an objection in particular in respect of the missing criteria for assessment of exerting the right to reply.13
Non-government organisations' advocacy work
Noteworthy are e.g. the activities of non-governmental organisation "eSlovensko", o.z. ("citizens' association"), which operates the Slovak Awareness Centre under the EU "Safer Internet" Programme. The Slovak Awareness Centre also initiates and coordinates activities associated with the celebration of Safer Internet Day.14 In cooperation with its partners including the OPDP, eSlovensko prepares media plans and produces outputs for the national campaigns and competitions, such as the above-mentioned project www.zodpovedne.sk.15
International obligations and International cooperation
Slovakia is part to the 1966 UN International Covenant on Civil and Political Rights (ICCPR) and to its First Optional Protocol that establishes an individual complaint mechanism.16
Slovakia is a member of the Council of Europe and has signed and ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms.17 It has signed and ratified the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (ETS No. 108)18 and its Additional Protocol regarding supervisory authorities and transborder data flows.19 Slovakia has signed and ratified the Convention on Cybercrime (ETS No. 185).20
In 2006, the European Court of Human Rights (ECtHR) issued a decision on the impossibility of challenging a judicial declaration of paternity in court under Slovakia's legal system. In 1970, a court determined that the appellant was the father of a minor, to whom he subsequently paid support. Decades later, retesting with improved methods determined that the appellant was not in fact the child's father. However, he was unable to remove this status from several public documents, and was concerned how this legal finding of paternity would affect the disbursement of his estate. The ECtHR found that the appellant's inability to change this finding was a violation of the individual's right to privacy found at Article 8 of the European Convention on Human Rights.21
As of 2009, the ECtHR had rendered two rulings against Slovakia for violating the right to privacy. In one case, a domestic court restricted the legal capacity of a person suffering from mental illness. The woman was required to wait three years before applying to have her full legal capacity restored, during which time she was restricted from acting on her own before public authorities. In March 2009, the ECtHR ruled that this extended period was excessive and interfered with her right to privacy. In the second case, the Ministry of the Interior authorised an investigative team to wiretap a lawyer's mobile phone in order to obtain information concerning one of the lawyer's clients who was suspected of being involved in organised crime activities. The ECtHR ruled that such interference with the right to privacy was unlawful.22
Slovakia joined the Organisation for Economic Cooperation and Development (OECD) in September 2000.
On 1 May 2004 Slovakia joined the European Union. Further obligations have arisen, in particular from the membership of the Slovak Republic in Europol, the Schengen Information System, Customs Information System, Working Group on Police and Judicial Cooperation, Coordination Working Group for Eurodac and Schengen Evaluation Working Group (SCHEVAL).
- 1. ePractice, eGovernment Factsheet – Slovakia– Legal Framework (January2010), available athttp://www.epractice.eu/en/document/288352.
- 2. Act No. 211/2000 Coll. on Free Access to Information, available in Slovak at http://www.civil.gov.sk/SNARCHIV/uk_the_act_on_free_access_to_informatio....
- 3. E-mail from Vlado Pirosik, Public Interest Lawyer, Environmental Lobbying Facility, Slovak Republic, to John Baggaley, Law Clerk, EPIC, 11 July 2003 (on file with EPIC). The Act on Free Access to Information stipulates the duty for obligees to provide information "without undue delay, but not later than in ten days." If a requester does not get the information from either the Obligee or from the appellate body (in the previous administrative proceedings), the requester has the right (Article 19, paragraph 4) to access the administrative court and let the court review both the administrative decisions. If the requester decides to use this right, from the moment she files a civil action, the proceeding is governed not by the Act on Free Access to Information, but by Act 99/1963 Coll. on Civil Court Procedure. Under this act, there is no obligatory time-limit imposed upon the courts. Typically, in Slovakia, this procedure takes five to six months.
- 4. Act No. 211/2000 Coll. on Free Access to Information, supra.
- 5. "Government Approves New Version of Law on Confidential Information," BBC Summary of World Broadcasts, 2 March 2001.
- 6. "Ministry Proposes Changes to Law on Access to Information," The Slovak Spectator, 22 July 2005, available at http://www.slovakspectator.sk/clanok.asp?cl=20370.
- 7. Draft act amending and supplementing the Act 40/1964 Coll. Civil Code and Act No. 211/2000 Coll. on Freedom of Information and amending of certain laws (Freedom of Information Act), available in Slovak at https://lt.justice.gov.sk/Document/DocumentDetails.aspx?instEID=-1&matEI....
- 8. Email from Zuzana Babicová, Office for Personal Data Protection, Slovak Republic, to John Baggaley, EPIC, 16 June 2003 (on file with EPIC).
- 9. Id.
- 10. Slovak Supreme Court, Ref No. 5 Cdo 83/2008, at nssr.blox.sk.
- 11. Available in English at http://www.culture.gov.sk/uploads/3q/P0/3qP0AW8PvDmgayCVare-sg/act-168.pdf.
- 12. Id. See, in particular, Article 3 stating that, "Public authorities, budgetary organisationsand grant-funded organisationsthat they establish and legal entities established by law are obliged, on a basis of equality, to provide the publishers of periodicals and press agencies with information on their activities in order to supply true, timely, and impartial information to the public."
- 13. "Krajcer rokoval o tlačovom zákone" ("Krajcer Discussed the Press Act"),Webnoviny.sk, 5 October 2010, available in Slovak at http://www.webnoviny.sk/media/krajcer-rokoval-o-tlacovom-zakone-/230856-....
- 14. English summary of the eSlovensko o.z. activities available at http://www.zodpovedne.sk/kapitola_ostatne.php?cl=english_language.
- 15. Personal data protection focused episode available at http://www.youtube.com/watch?v=BS3BZJWbEco&feature=related.
- 16. Slovakia has been partto the ICCPR and to its First Optional Protocol since 28 May 2003. The texts of the Covenant and of its First Optional Protocol are available at http://www2.ohchr.org/english/law/index.htm.
- 17. Signed 21 February 1991, ratified 18 March 1992, entered into force 1 January 1993, available at http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CM=8&D....
- 18. Signed 14 April 2000, ratified 13 September 2000, entered into force 1 January 2001, available at http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=108&CM=1&D....
- 19. Signed 8 November 2001, ratified 24 July 2002, entered in to force 1 July 2004, available at http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=181&CM=8&D....
- 20. Signed 4 February 2005, ratified 8 January 2008, entered into force 1 May 2008 available at http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=185&CM=&DF=&C....
- 21. European Court of Human Rights, Appl. No. 10699/05 10 October 2006, Paulik v. Slovakia, http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=htm....
- 22. "2009 Human Rights Report:Slovakia,"supra. Judgemts, decision, reports and other relevant documentation of the ECtHR can be consulted on-line at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/.