Normative regulation of electronic administration in Republic of Serbia

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1.    Introductory remarks

As a consequence of the development of society and technology, and the overall civilizational progress, modern society1, especially at the national levels, is characterized by an exceptional dynamic of overall social, economic, legal, economic, sociological, political and other processes and relationships, which also conditions a stronger connection between public authorities and subjects under its jurisdiction. This connection of the public authority with those under its jurisdiction – individuals, legal entities, business entities, etc. – is achieved through modern technology, and especially through the use of various electronic services, with the special aim of achieving the principles of efficiency and economy – timely and high – quality services with the least expenditure of time and material resources (Vučinić, 2020, p. 45).

Thus, the Government of the Republic of Serbia designates e-government as the use of information and communication technologies (ICT), which provide opportunities for citizens and businesses to communicate and cooperate in business with the public administration, using electronic media (Internet, mobile phone, smart cards, etc.) (Đurašković, 2016, p. 17).

As the concept of E-government, at least from the aspect of legal regulation of this social technical-technological project, is relatively new in the this area, legal regulation is still in the development stages, and represents an extremely dynamic component of domestic legislation, where special importance is put on theby-laws. Thus, bearing in mind the fact that the concept of E-government is a new phenomenon in our region, this concept is not even mentioned in the Constitution of the Republic of Serbia, as the highest act of our legal order. In this sense, it can only be stated that, when it comes to the Constitution of the Republic of Serbia, the same framework that applies to public administration is applied to electronic administration.

The legal norms governing electronic administration in the Republic of Serbia are currently found in various positive legal regulations. In addition to individual norms on the introduction of information and communication technologies in connection with the general administrative procedure contained in the “new” Law on General Administrative Procedure (LGAP), in Serbia there is also a special law dedicated exclusively to electronic administration issues – the Electronic Administration Act (EAA). In addition to these laws, various forms of digital behaviour and use of information and communication technologies are found in laws that regulate special (administrative) areas. This, therefore, means that practically the entire regulation of electronic administration in the Republic of Serbia is found in various acts, while a certain part of the regulation is certainly found in bylaws, which appear as a logical and necessary consequence of the fact that the system of electronic administration in Serbia continues to develop, and quick and simple adjustments are often necessary to eliminate the problems that have arisen, or due to the expansion of the range of services offered to citizens and the economy.

Here is an overview of the regulations that govern electronic administration in the Republic of Serbia, starting with the Electronic Administration Act, as a systemic law, and other laws and by-laws.

2.    Electronic administration act– systemic law in the regulation of electronic administration in the Republic of Serbia -

The exceptional importance of electronic administration for the Republic of Serbia is also evidenced by the special legislation contained in the Law on Electronic Administration, as a systemic law governing this area.

The initial article of this Act stipulates that this law regulates “the administration of state bodies and organizations, bodies and organizations of provincial autonomy, bodies and organizations of local self-government units, institutions, public companies, special bodies through which regulatory functions and legal and natural persons who are entrusted with public powers (hereinafter referred to as the authority) using information and communication technologies, i.e. the conditions for establishing, maintaining and using interoperable information and communication technologies of the authority (hereinafter: electronic administration).” Paragraph 2 of the same article provides that “The provisions of this law shall accordingly be applied to other affairs of state bodies when they act in electronic form, unless otherwise regulated by another law” (Article 1 EAA).2

Generally speaking, therefore, the Electronic Administration Act seeks to comprehensively3regulate the use of information and communication technologies and electronic communication, as well as the exchange of data between various public administration bodies, on the one hand, and citizens and business entities, on the other hand. Although the various elements of electronic administration are contained in special regulations, the Electronic Administration Act states that the issues of electronic administration regulated by that law cannot be regulated or changed by special laws, and everything, we believe, is for the purpose of uniform electronic handling of public administration bodies, as well as equal protection of rights and positions of citizens and other subjects.

When we talk about the application of this Law, Article 2 establishes the widest, almost absolute,4application of this regulation to the electronic communication of public administration bodies when they perform not only administrative activities, but also when they perform other tasks of state bodies, either in relation to other bodies or to the citizens. Thus, Article 2

of the Law, as a general norm in electronic administrative procedures, prescribes “The authority is obliged to perform electronic administrative procedures and communicate electronically in accordance with this law and the regulations adopted on its basis.” In addition, paragraph 2 stipulates that the provisions of this law shall be applied “and on electronic communication between authorities, as well as on the communication of those authorities with parties in the performance of tasks within the scope and competence of state authorities that do not relate to administrative proceedings, unless otherwise regulated by a special law.” This kind of regulation, therefore, foresees the full application of this law to the overall electronic communication and actions of public administration bodies.

The next thing that the legislator paid attention to, in systematizing the legal provisions, are the basic principles that are included in the provisions of articles 5-7 of the Electronic Administration Act. According to these provisions, the basic principles on which electronic administration is based in our country are: the principle of efficiency of equipment management, the principle of security of electronic administration and the prohibition of discrimination (see in detail Palević, 2020, p. 529). These, conditionally speaking, “special” basic principles of electronic administration do not exclude the application of general constitutional principles and general principles of administrative procedure in the use and application of information and communication technologies by public administration bodies.

The principle of efficiency of equipment management, as the first of the special principles of electronic administration, is provided for in Article 5 of the Law according to which “The Authority is obliged to efficiently manage the equipment at its disposal so as to enable its proper and economical use.” This principle implies that the authority must ensure efficient and economical application of information and communication technologies in accordance with technical rules and rules of general and special administrative procedures, whichever are applied in the specific case. From the legal language – “proper ... use” of technology – it follows that technologies must not be used contrary to the purpose for which they were introduced into the public administration system, which is, in the first place, the satisfaction of the public interest and needs of citizens, as well as others subjects.

The principle of security of electronic administration, prescribed byArticle 6 of the EAA, implies that “information systems, electronic communication networks and equipment used to perform electronic administrative procedures must meet the conditions and standards of information security, in accordance with the regulations.” One could, however, criticize the approach of the legislator to completely prescribe the obligation of compliance “with the regulations” – which includes both law’s and by-law regulations related to information security. We believe that, although it is a principle that, like any principle, should remain at a general and abstract level, the legislator could and had to prescribe somewhat narrower and stricter conditions that public administration bodies must, as a minimum, respect in terms of information security, and all in order to protect the interests and rights of citizens and other entities that, in some way, form part of electronic administration.5

Finally, as a particularly highlighted (similarly Palević, 2020, p. 532) principle of electronic (public) administration, prescribed by Article 7 of the EAA, is the principle of prohibition of discrimination, which, as a general principle of modern societies, is contained in the Constitution and found its place in sphere of electronic administration. It refers to two moments. First, all persons have the right to use the services of electronic services and electronic administrative procedures, which means that everyone must be able to have electronic access to the public services offered, regardless of any personal characteristics. Second, persons who are unable (for example, persons with disabilities) to use electronic administration services in their original form, must be enabled to use the services adequately to the circumstances of the specific case and in accordance with their capabilities. The EAA does not say anything about the concretization of this principle, the setting of limitations or conditions, and it is left to regulations of lower legal force and practice to regulate the content of this principle more precisely.

The entire next chapter of the EAA is dedicated to infrastructure in electronic administration. This – the second – chapter is the most extensive chapter of the Electronic Administration Act, which, in its provisions of Articles 8-31, contains substantial norms that establish and regulate the system of electronic administration, its elements and the manner of its functioning, and includes a significant number of provisions related to the technical aspects of the electronic administration system: 1) Unified information and communication network of electronic administration; 2) Service bus of the organ; 3) Establishment and management of registers and records in electronic form; 4) Use of data from registers and records in electronic form; 5) Protection of data and documents during their acquisition and transfer; 6) Establishment and management of Metaregistry; 7) Unique electronic mailbox; 8) Software solution; 9) e-Administration portal; 10) Work of authorities on the e-Administration Portal; 11) Authorized persons of the e-Administration Portal; 12) Obligations of the main administrator of the e-Administration Portal; 13) Obligations of body administrators on the e-Administration Portal; 14) Rights of users of electronic administration services on the e-Administration Portal; 15) Establishing and maintaining a web portal in electronic administration; 16) Reuse; 17) Licenses for reuse; 18) Open data portal; 19) Creating and maintaining a web presentation; 20) Physical protection of data and storage of backup copies; 21) Maintenance, repair and decommissioning of work equipment; 22) Conditions for establishing electronic administration. Within this part, a separate article establishes the conditions for the establishment of electronic administration (a total of 20 conditions are prescribed).

The third chapter of the EAA is dedicated to electronic administrative procedure, which essentially has two parts of provisions. The first part refers to the establishment and connection of an individual body to the electronic administration system, which includes provisions on the establishment of electronic administrative procedures of the body, conditions for obtaining and transferring data and electronic documents, user authentication, user authorization and identity federation.6 The second part of this chapter refers only to practical electronic administrative procedures of public administration bodies. Thus, the provisions of Articles 37–42 of the EAA the obligations of authorities in communication with the user of the electronic administration service,7electronic submission, receipt of electronic submission, electronic delivery, confirmation of electronic delivery, as well as the e-mail address of the authority in electronic administrative proceedings are prescribed. So, as we can see, the second part is dedicated to the arrangement and verification of electronic communication between public administration bodies and citizens, as well as the submission of various certificates issued by the administration bodies.

The last three chapters are, as usual, dedicated to supervision, penal provisions and transitional and final provisions. Thus, the provisions of Article 43 of the EAA stipulate that the supervision of the implementation of this law and the regulations adopted on the basis of it shall be carried out by the ministry responsible for the development of electronic administration. Penal provisions provide for a misdemeanour on the responsibility of the main administrator of the web portal, the administrator of the body on the web portal, the responsible person in the body authorized to keep electronic registers and the responsible person in the body if they act contrary to certain provisions of the law. Transitional and final provisions prescribe deadlines for: adoption of by-laws (six months from the date of entry into force of this law); establishment of the Service Bus of authorities for the exchange of data from registers; establishment of registers and records in electronic form; establishment of Metaregistry ; development of software solutions; electronic administrative procedure; transfer of e-mail registers and orders to servers in the Republic of Serbia; as well as the provisions on the entry into force of the law.

It is clear from the above that the Electronic Administration Act, although it is not one of the most comprehensive legal texts, regulates the key and basic issues of electronic administration in the Republic of Serbia in a fairly comprehensive manner. True, as it was pointed out, the legislator left the regulation of a significant part of the matter to the executive and administrative authorities, which will regulate numerous issues with bylaws, thus creating a coherent and unified set of regulations on electronic administration. Although the legislator’s decision to leave the prescription to the executive and administrative authorities should always be approached with scepticism and with a degree of caution, we believe that leaving the law to the executive branch, in the case of electronic administration, was necessary and justified, bearing in mind the trend of constant and rapid technical-technological progress. In addition, it is quite reasonable to expect that during the establishment and expansion of the electronic administration system, there will be necessary interventions regarding the regulation of certain issues. Bearing in mind the complexity and time period necessary for the adoption of the law, as well as its amendments and additions, in the case of electronic administration, leaving a significant part of the prescription of provisions to the executive and administrative authorities, our legislator was wise.

3.    Other laws regulating certain issues of electronic administration

Despite the fact that there is a special law regulating the field of electronic public administration, not all aspects and all relevant issues of electronic administration in the Republic of Serbia are regulated by the Electronic Administration Act, as a systemic law, nor would it be possible by the nature of things. On the contrary, other legal regulations regulating both general and special administrative procedures contain some special rules related to electronic administration, in relation to electronic administrative procedures.

• a)    Law on General Administrative Procedure

  The Law on General Administrative Procedure is also important for the electronic actions of administrative bodies. Namely, the LGAP comprehensively regulates the rules of the general administrative procedure, which initially, for the first time, established the legal basis for electronic proceedings, which was further elaborated by the adoption of the Electronic Administration Act (Milkov, 2017, p. 133 et seq.).⁸This primarily refers to the possibility of public administration bodies to teach applicants, receive requests for recognition of rights or other types of submissions in administrative matters and to inform the applicant about the progress of the procedure electronically (LGAP, Article 12). As an example of the introduction of digitization of work in the work of administrative bodies, the obligation of the body to ex officio acquire and process data on the facts of which official records are kept, and which are necessary for decision-making, is often highlighted.⁹Authorities can also exchange such data electronically (LGAP, Article 103). This way of acting, essentially, stands in a strong connection with the principles of effectiveness and economy, but also with the final provisions, where it is foreseen that the provisions of special laws that require the parties to submit

documents that prove the facts of which the authorities keep official records will cease to be valid (see LGAP, Article 215). Storing databases and various documents in electronic form also enables viewing of case files in digital form. One of the most important actions in the administrative procedure is service(delivery), which, although it is a form of informing the participants of the procedure, has a great impact on the rights, obligations and interests of the parties. All forms of delivery (personal and indirect) can also be done electronically, provided that the parties have agreed to it. The delivery note, as a confirmation that personal or indirect delivery has been made, can be in electronic form (LGAP, Article 72 and 77). Also, there are no legal obstacles to the fact that the decision, as the most important act in the administrative procedure for the adoption of which the administrative procedure is initiated, and which resolves the administrative matter that ends the administrative procedure, can be issued in the form of an electronic document.

In addition to the above, in the general administrative procedure there is room for the introduction of additional digital elements, which also refers to the way the entire procedure is conducted, the performance of evidentiary actions and the adoption of an administrative act. While it is true that LGAP recognizes the institute of video-conference oral hearings, but only for those bodies that have the technical capabilities to schedule and hold such type of hearings (LGAP, Article 111). This way of holding discussions digitally must be gradually introduced as a rule, and not, as is the case in practice, as a rarely used exception.

Certainly, with the increasing digitization of the general administrative procedure, space is opened for the introduction of more digital elements in special administrative procedures as well.

• b)    Law on tax procedure and tax administration

The provisions of the Law on General Administrative Procedure and the Electronic Administration Act are generally followed by laws governing special administrative areas. Such is the case with the Law on Tax Procedure and Tax Administration (hereinafter: LTPTA). LTPTA certainly takes into account the fact that citizens and business entities have long since switched to electronic means of communication and digital documentation management in their jobs. As a result, when it is necessary to access data important for determining taxes and tax obligations, taxpayers must provide the necessary documents in electronic form on electronic data carriers (LTPTA, Article 37a).

• c)    Customs Law

Information and communication technology has also found its application in the area of customs procedure, as a special administrative procedure. The considerable amount of information and data that customs authorities have to exchange with other administrative authorities and citizens, as well as with business entities, requires efficient and reliable exchange of large amounts of data and fast communication and distribution thereof. Therefore, the importance of information and communication technologies in the performance of tasks under the jurisdiction of customs administrative bodies is also recognized by the systemic law in this area – the Customs Act. This law regulates the rules and procedures that apply to goods that are imported and exported from the customs territory of the Republic of Serbia. Customs authorities, therefore, according to the express provision of Article 4 of the Customs Law, have the obligation to introduce and apply information and communication technologies, when it is cost-effective and efficient for the Customs Administration, as well as for the economy in general.

Information and communication technologies are understood as methods of electronic trade and methods of electronic determination of the correctness of data and goods. Certain actions can be performed electronically, such as the submission of declaration and summary declaration. In general, customs authorities must enable communication with business entities to take place electronically, which respects the needs of a developed society and a developed economy. It should be especially emphasized that, given that the customs procedure is a special administrative procedure, and that the general rules on the subsidiary application of the rules of the LGAP apply to it, if any of the issues are not specifically regulated by a special – Customs – law, they are subject to apply the norms of the general administrative procedure, which refers to “digital provisions”, but also to the provisions of the Electronic Administration Act.

• d)    Law on State Survey and Cadastre

4.    By-law regulations regulating certain issues of electronic administration

The Law on State Survey and Cadastre is another special law that governs a special administrative area. The subject of regulation of this law, according to Article 1, are professional jobs and jobs of the state administration related to the state survey, real estate cadastre, water cadastre, address register, etc. For obvious reasons, the cadastre must quickly and efficiently perform tasks within its jurisdiction, since the realization and enjoyment of property rights, as one of the basic human rights, but also the realization of many other rights, depends precisely on the quality functioning of this body. For this reason, Article 119 of the Law prescribes that data on changes to immovable property be requested from the competent authority electronically, and the same shall be submitted to the competent authority in the same way, through the WEB service.

For easier and more efficient access to cadastre data and services, the cadastre is developing a geodetic-cadastral information system that contains extensive data on real estate, real estate addresses, and the like. Therefore, documents can be issued in electronic form through the geodetic-cadastral information system. Also, in accordance with the express provision of Article 158 of the Law, the cadastre takes care of the electronic means of providing business traffic services for the use of cadastre data and services. Like all other public administration bodies, the cadastre prescribed the introduction of electronic public administration. This is according to Article 72s, paragraph 3 of the Law on Amendments and additions The Law on State Survey and Cadastre (2015) which stipulates that electronic office operations of the cadastre with regard to requests, decisions, documents and other acts in electronic form will be established no later than March 1, 2016, except for the implementation of a unified procedure in electronic form, in accordance with the Law on Planning and Construction, the implementation of which begins on 1 of January 2016.” This provision, however, has not yet taken root in practice to its full extent.

As it was pointed out earlier, a significant part of the issues on electronic administration, mainly of an organizational and technical nature, is left to the executive and administrative authorities to be regulated by by-laws, which are generally adopted on the basis of and in accordance with the Electronic Administration Act.

Thus, on the basis of the authorization from the Electronic Administration Act, the Government of the Republic of Serbia, in order to implement the provisions of this law, adopted the Regulation on closer conditions for the establishment of electronic administration, the Regulation on organizational and technical standards for the maintenance and improvement of the Unified Information and Communication Network of electronic administration and connecting the authority to that network, the Regulation on the way of keeping the Metaregister, the way of approving, suspending and cancelling access to the service bus of the authority and the way of working on the eAdministration Portal, the Regulation on the way of working of the Open Data Portal and the Regulation on the detailed conditions for creating and maintaining the authority’s web presentation. These regulations, adopted on the basis of the Electronic Administration Act, serve to implement it, and represent parts of a coherent and unified set of regulations on electronic administration of the Republic of Serbia.

According to Article 1, the Regulation on detailed conditions for the establishment of electronic administration regulates the conditions for the establishment of electronic administration, i.e. the performance of the duties of state bodies and organizations, bodies and organizations of provincial autonomy, bodies and organizations of local self-government units, institutions, public companies, special bodies through which the regulatory function of both legal and natural persons entrusted with public authority is realized – for the purpose of establishing electronic administration.

The Regulation on organizational and technical standards for the maintenance and improvement of the Unified Information and Communication Network of Electronic Government and the connection of authorities to that network, according to Article 1 of this Regulation, regulates the organizational and technical standards for the maintenance and improvement of the Unified Information and Communication Network of Electronic Administration, which it manages the Government service responsible for the design, harmonization, development and functioning of the electronic administration system and the rules for connecting and accessing state bodies and organizations, bodies and organizations of provincial autonomy, bodies and organizations of local self-government units, institutions, public companies, special bodies through which the regulatory function is exercised and legal and natural persons entrusted with public powers on the Electronic Government Network.

According to Article 1 of the Regulation on the way of managing the Metaregister, the way of approving, suspending and cancelling access to the service bus of the authorities and the way of working on the eAdministration

Portal, this act more closely regulates the way in which state bodies and organizations, bodies and organizations of provincial autonomy, bodies and organizations of local self-government units , institutions, public companies, special bodies through which the regulatory function is exercised and legal and natural persons who are entrusted with public powers enter registers and records in electronic form in Metaregistar, determine the structure and sources of data, as well as changes, in order to ensure interoperability when obtaining, processing and assigning, that is, delivering data. This Regulation also regulates the manner of approving, suspending and terminating access to data from the registers that are connected to the Unified Information and Communication Network of Electronic Administration through the Authority’s Service Bus and located in the State Centre for Data Management and Storage, as well as the manner in which authorities perform electronic administration services through the eAdministration Portal as a single access point of the electronic administration of the authority managed by the Government department responsible for designing, harmonizing, developing and functioning of the electronic administration system, terms of use, registration and work of service users on the eAdministration Portal, status monitoring related to implementation rights and obligations and other matters of importance for electronic communication with the authority through the eAdministration Portal, as well as the technical conditions of electronic delivery and the content of confirmations.

The Regulation on the operation of the Open Data Portal regulates the detailed conditions on the establishment and operation of the Open Data Portal, including organizational and technical standards, as well as other issues of importance for the functioning of the Portal – where information on open data sets is published by state authorities and organizations, authorities and organizations of provincial autonomy, bodies and organizations of local self-government units, institutions, public companies, special bodies through which the regulatory function is exercised and legal and natural persons entrusted with public powers (Article 1 of the Regulation).

The Regulation on detailed conditions for the creation and maintenance of the organ’s web presentation10 regulates detailed conditions for the establishment and operation of the Open Data Portal, including organizational and technical standards, as well as other issues of importance for the functioning of the Portal – where information on open data sets is published by the state

LAW - theory and practice Special Edition / 2023 bodies and organizations, bodies and organizations of provincial autonomy, bodies and organizations of local self-government units, institutions, public companies, special bodies through which the regulatory function is exercised and legal and natural persons entrusted with public powers.

Finally, the Government of the Republic of Serbia, on the basis of its general authority to enact decrees regarding the implementation of other laws, as well as on the basis of the Law on the Government and the Law on the Planning System of the Republic of Serbia, passed the Regulation on the Office for Information Technologies and Electronic Government, as well as Program for the development of electronic administration in the Republic of Serbia for the period from 2020 to 2022 with an Action Plan for its implementation.

Thus, the Regulation on the Office for Information Technologies and Electronic Administration, according to Article 1, establishes the Office for Information Technologies and Electronic Administration (hereinafter: the Office) and determines its scope, organization and other issues relevant to its work. The office performs professional tasks related to: designing, harmonizing, developing and functioning of electronic administration systems and information systems and infrastructure of state administration bodies and government services; development and application of standards in the introduction of information and communication technologies in state administration bodies and Government services, as well as support in the application of information and communication technologies in state administration bodies and Government services; design, development, construction, maintenance and improvement of the computer network of republic authorities; tasks for the needs of the Centre for the Security of ICT Systems in the Republic’s Bodies (CERT of the Republic’s Bodies) and other tasks determined by the law and this Regulation.

The program for the development of electronic administration in the Republic of Serbia for the period from 2020 to 2022 with the Action Plan for its implementation is a public policy document by which the Government plans the development of electronic administration in the Republic of Serbia for that period.11

The aforementioned by-laws, together with the highlighted laws, represent a unique unit of legal regulation of the electronic administration system in the Republic of Serbia, and represent a necessary component for the regular functioning of this system.

5.    Concluding considerations

Based on all that has been presented, we can conclude that in the Republic of Serbia there is a broad and relatively harmonized system of legal and by-laws regulating the field of electronic administration, where the Electronic Administration Act, together with the Law on General Administrative Procedure, sets strong frameworks for further legislative interventions, especially by executive and administrative authorities in the field of electronic administration, all with the aim of establishing and managing an efficient system of electronic administration, which will smoothly and timely provide all necessary information, documents and services to citizens and the economy.

In addition, it is indicated that administrative procedures, both general and special, are slowly being digitized in our country. First of all, the Electronic Administration Act and certain provisions of the Law on General Administrative Procedure created assumptions that introduce information and communication technologies in the performance of administrative activities, and which assumptions are partially accepted in the laws governing special administrative areas.

However, there is a lot of room for improvement in this field. For the complete transformation of public administration into electronic public administration, it is necessary to enable digital management of administrative procedures. Certainly, it is not possible, by the nature of things, to digitize all administrative procedures, or even all phases of other administrative procedures, but those procedures that can be concluded with a note on the case file, without taking a statement from the parties in the procedure or in simpler one – party administrative procedures they can be completely transformed into digital form. This would lead to an even more efficient performance of administrative activities, and significant financial and time savings would be achieved, both for the parties and the acting authorities.

For a complete transition, it is necessary to ensure the security of information and data used in administrative procedures, since the integrity of citizens’ personalities depends on the security of the information system and data protection. In this sphere, legislative, executive and administrative bodies must never stop taking legislative and other necessary actions.

Golić Darko

Pravni fakultet za privredu i pravosuđe u Novom Sadu, Univerzitet Privredna akademija u Novom Sadu, Srbija