Powers of the communal militia
Traffic and its regulation are becoming more and more problematic in the larger cities of the Republic of Serbia, where the management of spatial and infrastructural development, which is primarily conditioned by population growth and an increasing number of cars, is significantly more difficult. Also, deviations from planned urban plans and issued building permits are becoming more and more noticeable. With all this, scientific studies of the traffic and construction profession that point to current problems and suggest potential solutions are often overlooked.
In an effort to solve the aforementioned problems, primarily illegal parking and stopping of vehicles, at the local self-government level, the idea was reached that certain modern systems can be used for these needs, which include the use of vehicles equipped with a system for automatic recognition of vehicle license plates via mobile video of supervision, taking over to a large extent the work methods that were reserved for the Ministry of Internal Affairs until now. Although it seems that these activities represent a logical sequence of events and a completely justified procedure of the local self-government, it can still be seen that this way of working was introduced hastily, without taking into account the competences of the authorities for carrying out specific tasks, as well as the conditions under which certain activities and activities they can perform.
There is also the question of their compliance with regulations that ensure the protection of basic rights and freedoms of natural persons, especially the right to protection of personal data, which are inevitably processed on a larger scale and in different ways through these systems. The focus of the work will be on the analysis of positive legal regulations related to the jurisdiction of local self-government, especially those that prescribe the tasks and powers of the communal militia, and their compliance with the regulations that regulate traffic safety and the protection of personal data, viewed through the segment of prescribing, controlling and prosecuting offenses of illegal parking and stopping vehicles, as well as the use of authorization for audio and video recording.
Law on Police (ZOP) uređuju se unutrašnji poslovi, organizacija i nadležnost Ministarstva unutrašnjih poslova, policijski poslovi, organizacija i nadležnost Policije, kao i druga pitanja od značaja za rad Policije i Ministarstva, dok policija, u smislu ovog zakona, predstavlja organizovan način obavljanja zakonom uređenih poslova, koju čine policijski službenici koji, u obavljanju policijskih i drugih unutrašnjih poslova, štite i unapređuju bezbednost građana i imovine, poštujući Ustavom zajemčena ljudska i manjinska prava i slobode i druge zaštićene vrednosti u demokratskom društvu, uz mogućnost upotrebe sredstava prinude u skladu sa Ustavom i zakonom. Prema članu 30 navedenog zakona predviđeno je da su policijski poslovi deo unutrašnjih poslova koje obavlja Policija, primenom policijskih ovlašćenja, mera i radnji, i da, između ostalog, u policijske poslove spadaju regulisanje, kontrola, pružanje pomoći i nadzor u saobraćaju na putevima i drugi poslovi iz propisa o bezbednosti saobraćaja, kao i otkrivanje i rasvetljavanje prekršaja i privrednih prestupa, te da prilikom obavljanja policijskih poslova, policijski službenici primenjuju i ovlašćenja, mere i radnje propisane Zakonikom o krivičnom postupku, Zakonom o prekršajima i drugim zakonima.
Prema Zakonu o komunalnoj miliciji (ZoKM) predviđeno je da se ovi organi obrazuju na teritoriji opštine, grada i grada Beograda, odnosno jedinice lokalne samouprave kao unutrašnja organizaciona jedinica u sastavu jedinstvenog organa opštinske, odnosno gradske uprave ili uprave obrazovane za pojedinu oblast za zakonom određene poslove čijim obavljanjem se obezbeđuje izvršavanje nadležnosti jedinice lokalne samouprave u oblastima, odnosno pitanjima komunalne delatnosti, zaštite životne sredine, ljudi i dobara i obezbeđuje zaštita i održava red u korišćenju zemljišta, prostora, lokalnih puteva, ulica i drugih javnih objekata, kao i obezbeđuje nesmetano obavljanje zakonom određenih poslova iz nadležnosti jedinice lokalne samouprave (u daljem tekstu: poslovi komunalne milicije).
Taking into account the provisions of Article 10 of the LoCM, which provides for the activities of the communal militia, it can be concluded that the jurisdiction of the communal militia is related to certain areas of control from the sphere of communal activities that are under the jurisdiction of local self-government units. According to Law on communal activities (LoCA) these activities are defined as activities of general interest and include the provision of communal services important for the fulfillment of the life needs of physical and legal persons for which the local self-government unit is obliged to create conditions for ensuring appropriate quality , scope, availability and continuity, as well as supervision over their implementation. By analyzing the provisions of Article 10 of the LoCM, which regulate the responsibilities of municipal militia control, and Articles 2 and 3 of the LoCA, which prescribe the concept of communal activities and their closer definition, it can be concluded that to a greater extent, the areas defined as communal activities from the LoCA have been entered into the LoCM as control competencies that can carried out by members of the communal militia. What can also be observed is that within these regulations, nowhere is the area of road traffic regulation, direct control, traffic regulation and taking special and other measures to establish traffic safety, control of participants and vehicles in traffic and related activities, and it can be concluded that the local self-government unit and its bodies, and therefore the communal militia, do not and cannot have the authority to prescribe, control and process offenses in the field of traffic safety, especially when it comes to stopping and parking vehicles that fall under the domain of regulation of the Law on Road Traffic Safety, according to which the supervision of compliance with this law and regulations adopted on the basis of this law is carried out by the Ministry of Internal Affairs. In accordance with the above, it can be concluded that the municipal militia, even if it has certain powers regarding the application of means of coercion, is still not responsible for the safety of public traffic on the roads, but its activity is related to the communal activities provided for in the LoCA.
Taking into account the provisions of Article 286, as well as Article 296 of the Road Traffic Safety Law (RTSL) can be concluded that for the control of parking and stopping on the roads, as well as the recording of traffic, for the purpose of documenting offenses and their prosecution as the only competent body is the Ministry of Internal Affairs - Traffic Police Administration, while the competence of the communal militia according to this law refers to the segment of removal, i.e. moving vehicles, as well as the installation of devices that prevent vehicles from being driven away during parking supervision and control, in accordance with the law, by-laws and regulations of the local self-government unit, with a note that even then, the competences given to the local self-government units, which do not refer to the control and prescription of traffic, but only communal violations, and improper parking and stopping of vehicles according to the valid legal regulations, must not be exceeded according to the regulations, it cannot be.
Municipal militia and personal data protection
When it comes to the authorization of the communal militia regarding the use of audio and video recording systems and their compliance with personal data protection standards, it is necessary to refer to Article 25 of the LoCM, which stipulates that the communal militia conducts audio and video recording of public places, in order to perform communal -militia affairs, using equipment for video-acoustic recordings and photography, and for the purpose of applying communal-militia powers, detecting and elucidating violations, as well as controlling and analyzing the actions of communal militiamen.
It is further stated that the communal militia can also use communal militia vehicles, with recording devices:
a) for the purposes of achieving the previously mentioned goals (for the purpose of performing communal-militia tasks, applying communal-militia powers, detecting and elucidating violations, as well as controlling and analyzing the actions of communal militiamen)
b) also in cases where the municipal militia provides assistance to other organizational units of the administration, as well as to companies, organizations and institutions that, on the basis of the law, i.e. the general act of the local self-government unit, decide on certain rights of citizens, legal entities or other parties (hereinafter: authorized organizations ) as well as the operator of communal activities, when according to the opinion of the authorized organization or the operator of communal activities, there are assumptions that the implementation of their executive decision will not be possible without the presence of communal militiamen, and when this is important for the performance of the work of communal militia, authorized organizations and operators of communal activities.
Bearing in mind that according to the requirements of Article 5 paragraph 1 point 2) of the Law on Personal Data Protection (LPDP) when determining the purpose of individual processing of personal data, it is necessary to do so so that the purpose is specifically determined, explicit, justified and legal and that further personal data cannot be processed in a way that is not in accordance with those purposes, it can be concluded that this determination of purposes for situations where audio and video recording can be carried out in combination with the provisions of Article 10 paragraph 1 point 7) LoCM where it is stated that the tasks of the communal militia, in addition to those enumerated in paragraph 1 points 1 to 6 of the same article, can also be other tasks in accordance with the law, indicates that for the performance of any of the tasks of the communal militia, which can be seen from the cited provisions are not always the most clearly and unambiguously determined, may use audio and video recording, which entails possibilities for potential arbitrary decision-making, setting large discretionary powers leading to excessive use of powers, processing of personal data that could produce illegalities in acting and thereby jeopardizing the achieved rights and freedoms of citizens.
Also when it comes to the possibility that when providing assistance to other organizational units of the administration, as well as to companies, organizations and institutions and those performing communal activities, the communal militia uses equipment for audio and video recording, and when in fact some of the aforementioned entities assess that this is of importance for the performance of the work of the communal militia, authorized organizations and utility operators, it is observed that this authorization and the use of these systems is extended in some way to other entities whose number, especially taking into account the definition of utility operators who can be different public companies, economic companies, entrepreneurs or other business entities and the jobs they perform, not only the originally insufficiently determined purpose is expanded to a considerable extent, but also the circle of subjects who in some way extensive and sometimes arbitrary interpretations and subsequently in practice can determine and/or expand the purpose which increases the possibilities for potential abuses and use beyond the limits of the given powers. In addition to the above, it would be necessary, bearing in mind that in this way the municipal militia and the other listed subjects appear as those who jointly determine the purpose of processing and that in the context of LPDP they can be considered joint handlers of personal data, and their relations would be closer and clearer should be regulated primarily by law or, in the absence of legal regulation, at least by an appropriate agreement in accordance with Article 43 of the LPDP.
Rulebook on the method of recording in a public place and the manner in which the communal militia announces its intention to record
It is also important to point out that if the communal militia intends to carry out filming in a public place, it must announce it publicly, and that in order to implement the given powers, the way of filming in a public place and the way of announcing the intention of such filming are prescribed by the minister responsible for local self-government affairs.
According to Article 4 of the Rulebook on the method of recording in a public place and the way in which the municipal militia announces its intention to conduct a recording (Rulebook on the Method of Recording) by recording in a public place, in the sense of this rulebook, it is considered the recording that the communal militia makes in any part of the public space , with or without objects, determined by the outer edge in relation to other public spaces (hereinafter: the perimeter of the public space) and intended for everyone under equal conditions, with a note from Article 5 that the visual angle that the communal militia covers during filming must correspond to the space which is necessary for the realization of the legal purpose of recording, so it must not be larger than necessary for the realization of that purpose, nor occupy space exclusively owned by private persons. It can be seen that the term public place and space is not determined by law, but is done by a by-law, which may call into question legal certainty, taking into account the ways of passing by-laws and the possibility of their amendment and supplementation through a simplified procedure and decision of the competent minister, which to a large extent measure may call into question the legal implementation of powers related to audio and video recording and further their potentially inadequate extension. When it comes to the definition of terms, it is important to note that neither LoCM nor the Rulebook on recording method defines the term audio and video recording nor what is meant by equipment for video-acoustic recordings and photography, which should have been done first of all by LoCM. In addition to the possibility of recording using municipal militia vehicles, which is provided for in the LoCM, the cited Rulebook on the method of recording states for the first time in Article 7 that equipment for video-acoustic recordings and photography is installed on existing objects of public areas or specially built objects for that purpose , which are publicly owned by local self-government units.
Another indicator of misunderstanding and non-compliance with the LPDP is the provision of Article 8 of the Rulebook on the method of recording, which prescribes that the recording is carried out by the decision of the head of the communal militia, i.e. the communal militiaman designated by the head as the processor in accordance with the law regulating the protection of personal data. Namely, in Article 4, item 9) of the LPDP, it is defined that a processor is a natural or legal person, i.e. a government body that processes personal data on behalf of the controller, and in accordance with the above, a municipal militiaman who performs a recording in accordance with the decision of the chief can only be considered by an authorized person who performs those processing operations within the controller, and not by an external actor who performs personal data processing operations on behalf and on behalf of the controller.
As the most controversial segment from the aspect of protection of personal data of this Rulebook on the method of recording, is the provision of Article 10, which provides that:
a) Recordings that do not require personal identification are performed by the municipal militia using its own human and technical resources.
b) Recordings that include the processing of biometric data for the purpose of unique identification of a natural person, as well as recordings that represent systematic surveillance of publicly accessible areas to a large extent, are carried out by the communal militia using its human and technical resources and in cooperation with the Ministry of Internal Affairs (hereinafter: Ministry).
In this way, the communal militia is given the authority to process biometric personal data, for the first time the identification of persons not listed in LoCM is mentioned, as well as the systematic surveillance of publicly accessible areas on a large scale and according to a large (unspecified) number of persons, and which brings the cited provision of this rulebook to the question of its compliance with Article 42 of the Constitution of the Republic of Serbia, which prescribes that the collection, holding, processing and use of personal data is regulated by law, especially bearing in mind that these powers are not provided for in the LoCM. Even if this kind of processing of personal data is foreseen in some future amendments and additions to the LoCM, which we consider unnecessary and excessive taking into account the responsibilities of the communal militia, it would have to be harmonized with Article 17, paragraph 2, item 7) of the LPDP, which prescribes the conditions for processing of special types of personal data for the purpose of achieving significant public interest with a detailed analysis and clearly justified and proven reasons that such processing is proportionate to the achievement of a specific and precisely defined goal, while respecting the essence of the right to the protection of personal data and that the application of appropriate and special a measure to protect the basic rights and interests of the persons to whom the collected and processed data refer.
When it comes to the fact that the processing of this data and the surveillance of public areas is carried out in cooperation with the Ministry of Internal Affairs, there is another important fact that in this case these two authorities are considered to be joint operators and that this relationship would have to be regulated first of all by law, and in accordance with Article 43 of the LPDP. It is also important to note that there is currently no legal basis or justification for this type of data processing to be collected and processed by the Ministry of Internal Affairs, as evidenced by the opinion of the Commissioner for Information of Public Importance and Protection of Personal Data dated May 29, 2020. which states that no appropriate legal basis is provided for the intended processing of biometric data for the purpose of unique identification of persons using video cameras and devices that enable audio and video recording on publicly accessible surfaces, and that in accordance with the provisions of Article 79 paragraph 2 point 1) LPDP, warns the MUP that the intended actions of data processing may violate provisions 5, 12, 13 and 54 LPDP, so the question arises as to how it is even possible that such a method of processing is foreseen by the rulebook as a by-law and that for the needs of the work of the communal militia, and that there is no reason for the Ministry of Internal Affairs to undertake such a thing.
Rulebook on the content of the records kept by the communal militia, the way they are kept and the destruction of certain data
Article 29 of the LoCM provides for the records kept by the communal militia, which, among others, include records of audio and video recordings, and that the minister responsible for the local self-government system prescribes the content and method of keeping records, as well as the procedure and method of destroying data that are collected by audio and video recording, with reference to the personal data contained in the records kept by the municipal militia being subject to the regulations on the protection of personal data.
According to Article 5 paragraph 1 of Regulation on the content of records kept by the municipal militia, the manner of their management and destruction of certain data(Regulation on the contents of records) on audio and video recordings, the municipal militia keeps records containing:
a) photographs and audio and video recordings of persons, vehicles, events and spaces;
b) personal and biometric data about persons, JMBG, vehicle registration numbers, date of event, time of event, information about space;
c) event identification numbers, data on vehicle owners, vehicles and offenses committed.
Observing the cited provisions of the Rulebook on the content of records, it can be seen that the records of audio and video recordings also contain certain data for which we concluded in the previous presentation that there is no legal basis or justification for their collection or any other form of processing. Namely, recording in public places is regulated in principle by Article 25 of the LoCM, where it is stated that communal militia conducts audio and video recording of public places, in order to perform communal-militia tasks, using equipment for video-acoustic recordings and photography. However, the LoCM itself, as already pointed out earlier, does not explicitly regulate what filming in public places entails nor does it define the concept of a public place, but the definition of this term is found in the Rulebook on the way of filming, which was explained in more detail previously.
Also, the LoCM itself and the by-laws adopted on its basis do not have a definition of the concept of video-acoustic recording and photography, i.e. video-surveillance carried out by the municipal militia, and from the available wording of Article 25 of the LoCM we can assume that it is the so-called "ordinary" video surveillance, which would include recording, monitoring and monitoring of the recorded area, without the possibility of any recognition and processing of biometric data of persons, vehicle registration plates, data on vehicle owners, shops, facilities, etc. because such functionalities would imply the existence of an explicit legal provision that would have to clearly and precisely determine the legal basis, processing objectives and personal data that are processed together with the purpose of processing in accordance with Articles 12 and/or 13 LPDP. In addition to the above, nowhere in LoCM is the possibility of the existence and use of equipment for any forms of recognition and identification foreseen, nor what it would entail, nor, therefore, what personal data it can and must collect in order for it to function properly and in what way carried out identification, so it remains unclear in what way and on what basis the municipal militia collects and processes personal and biometric data on persons, vehicle registration plates, data on vehicle owners, etc. within the framework of audio and video recording records.
Article 5 paragraph 2 of the Rulebook on the content of records foresees the existence of records on the seizure, inspection, copying and duplication of photographs and audio and video recordings of the municipal militia from paragraph 1, which are made available at the request of other authorities, i.e. organizational units. From the above, it can be concluded that it refers to all the personal data listed in paragraph 1, that these data were processed by the municipal militia and that they transferred them to another authority upon request, and that the actions of processing recordings, personal data and transfer are not explicitly prescribed by LoCM.
When it comes to the terms of storage of data collected by audio and video recording, LoCM stipulates that data that cannot be used in the procedure must be destroyed within one year, from the onset of the statute of limitations for initiating or conducting misdemeanor proceedings, in accordance with the law, while The Rulebook on the content of records stipulates that if the collected data are necessary for the conduct of criminal, misdemeanor and disciplinary proceedings, they shall be kept for five years from the end of the proceedings. We are of the opinion that both of the above-mentioned situations regarding the terms of destruction and storage of data should be regulated primarily by law for the sake of a greater degree of legal certainty, and not be done in the way that is currently regulated.
Concluding remarks
All of the above points to the fact that the regulations governing the actions of the municipal militia in regard to many issues concerning the protection of personal data, especially those related to the use of audio and video recording equipment, are not adequately regulated and leave a lot of open questions, undefined and/or insufficiently defined concepts and authorizations, which leads to increasing legal uncertainty and can be concluded with a higher degree of probability, the absence of an adequate and clear legal basis and purpose for the collection and other types of personal data processing through equipment for video-acoustic recordings and photography.
It should also be emphasized that the processing of personal data is legal if it is necessary for the exercise of public authority in the sense of Article 12 paragraph 1 point 5) LPDP, but that in terms of Article 14 paragraph 1 LPDP it must be prescribed by law, not by a rulebook or a decision , as by-laws with the note that the law from paragraph 1 of Article 14 must prescribe the public interest that is intended to be achieved, as well as the obligation to comply with the rules on the proportionality of the processing in relation to the goal that is intended to be achieved, and stating the conditions for the permissibility of processing by handler, types of data that are the subject of processing, persons to whom personal data refer, persons to whom data may be disclosed and the purpose of their disclosure, limitations related to the purpose of processing, the term of data storage and preservation, as well as other special actions and procedures processing, including measures to ensure lawful and fair processing.
Bearing in mind the above, it would be necessary to align LoCM, as well as accompanying by-laws with LPDP, especially when it comes to legal bases and purposes of processing. Namely, each individual purpose of data processing should be specified in a precise and clear manner, the types of data that are collected and processed with a concretely and precisely defined goal that is to be achieved, especially when it comes to the purposes of data processing in terms of the authority of the communal militia for audio and video recording. It is not without purpose to emphasize that the said harmonization had to be implemented already, bearing in mind the provision of Article 2 paragraph 2 of the LPDP, which provides that the provisions of special laws governing the processing of personal data must be in accordance with this law, as well as Article 100 of the LPDP, which indicates that the provisions of other laws, which refer to the processing of personal data, must be harmonized with the provisions of this law by the end of 2020, which, as can be seen from the above, has not yet been done.
More on this: I. Milić, O. Kalaba, Savremeni „pametni“ sistemi za regulisanje saobraćaja u gradovima Republike Srbije – (ne) usklađenost pozitivnopravnih propisa („pazi, snima se“), Međunarodni naučni skup „Pravo između ideala i stvarnosti“, tematski zbornik radova, Kosovska Mitrovica 2023, str. 253-277. Link >>