Case Summary and Outcome

In this case, the Constitutional Court of the Republic of Serbia found that the provisions of Law on Electronic Communications, which dealt with data retention, were unconstitutional since they unjustifiably restrict the right to secrecy of correspondence and other means of communications prescribed in article 41 of the Constitution of Republic of Serbia. These provisions were declared to be unconstitutional because their formulation was not sufficiently precise and left open the possibility to prescribe details in regard of data retention in some other act, other than a court decision.

Facts

Regarding the Law on Electronic Communication (Official Gazette RS, no. 44/10) the application for assessing constitutionality of the Law (articles 126-130) was submitted to the Constitutional Court of Serbia, along with two initiatives to commence proceedings for assessment of constitutionality and alignment with ratified international agreements. The provisions from these articles are contained in Chapter XVII “Secrecy of electronic communications, lawful interception and data retention” and they were challenged on the ground that they contradicted the right to secrecy of correspondence and other means of communications (article 41 of the Constitution of Republic of Serbia) and its related provisions from various international agreements that Serbia ratified.

The Constitutional Court declared only articles 128.1, 128.5, and 129.4 unconstitutional. As for the others provisions, the Court dismissed the initiative for assessment of their constitutionality.

Article 128 dealt with the obligation to retain data and paragraph 1 prescribed that the “operator is obliged to retain the data about electronic communication stipulated in the article 129.1 of this law (in further text: retained data) for the purpose of conducting the investigation, revealing criminal offenses and caring out criminal proceedings  in accordance with the law that regulates criminal proceedings, and also for the purpose of protection of national and public security of Republic of Serbia in accordance with the laws that regulates the functioning and operations of  security agencies and bodies of internal affairs.”

Furthermore, article 128.5 prescribed that the “operator was obliged to retain data in that manner that it can be accessed, or to be submitted without delay upon request of authorized state body, in accordance with paragraph 1. of this article.”

Finally, article 129 defined the types of retained data and paragraph 4 prescribed that “after collecting the opinions of the ministry in charged for internal affairs, ministry in charged for defense, information security agency and body responsible for protection of personal data,  defines in details requirements in regard of retention of data defined in paragraph 1 of this article.”

The rest of challenged provisions dealt with  secrecy of electronic communications (126), lawful interception of electronic communications (127), and protection of retained data (130).

Decision Overview

The Constitutional Court in June 2013 decided that articles 128.1, 128.5, and 129.4 are unconstitutional. As for the rest of the claims, the Court dismissed them.

The proposer of this initiative stated that  article 128.1 violated a right protected by the Constitution, since it establish as a basis for application of obligation to retain data, directly upon the law and towards an  indefinite number of people, instead of being based on a court decision as it is stated within the article 41 of the Constitution.  Further, article 129.4 is also unconstitutional since the order for data retention can only be part of a court decision and not emerge from a decision of the governmental body.

As for the provisions of article 129.1, 2 and 4, the Court considers that these are also unconstitutional since they are related to the application of a provision from article 128.1. By and large, the proposer of the initiative considered all provisions from article 126 to article 130 to be unconstitutional because they allowed for the interception of electronic communication without court decisions and for indefinite periods of time. In support of these allegations, this initiative relied on article 8 European Convention on Human Rights (ECHR), article 12 of Universal Declaration of Human Rights (UDHR), and article 17.1 of International Covenant on Civil and Political Rights (ICCPR).

As for the article 128, which deals with data retention, the Court stated that that this requirement is in line with Constitution, since the provision requires retention of the information about communication and not the very content of communication, this, it is within the legitimate aims prescribed within the Constitution. However the manner in which these data are used is disputable since the provision states that this requirement can be exercised “in accordance with the laws that governs criminal proceedings, functioning of  security agencies, and bodies of internal affairs.” The Court considered this broad provision, stating that this procedure will be conducted in accordance with some other laws, however, this still leaves open the possibility that retained data may be used in some other manner other than what is prescribed in the Constitution (upon court decision).

Regarding paragraph 5 of article 128, the Court stated that the obligation to provide access or submit retained data upon request of authorized bodies is unconstitutional, since it does not require a court decision as a basis to access these data.

Finally, because article 129. 4 is in logical and legal connection with article 128.5 since it defines that line Ministry, upon obtaining relevant opinions,  specifies details in regard of retention of data, the Court stated that for the same reasons as article 128.5, article 129.4 is also unconstitutional.

The Court within its decision referred to the ECtHR case law emphasizing the importance of protection of communication within article 8. ECHR, that encompass not only the content of communication but also information about communication (retained data). Also that limitation of this right has to be under effective control, referring particularly to the quality of the law that prescribes procedures in this regard.  Finally, the Court referred to its previous decisions on this matter, decision on Law on Telecommunication and Law on Military Security and Military Intelligence Agency. In reference the other international instruments for protection of human rights (ICCPR, UDHR), the Court stated that Constitution of Serbia provides a higher level of protection than those instruments in this particular matter.

In regard of the articles 126 and 127, the Court stated that they are in line with the Constitution since the user’s consent is necessary for processing and retention of data and in article 127 it  is furthermore stated that surveillance is possible only upon a court decision. Additionally, the Court dismissed the initiative for declaring unconstitutionality of the rest of the provisions since the initiative was not sufficiently supported to start deciding upon it and therefore it was declared as inadmissible.

Thus, the Court declared provisions of article 128.1 , 128.5, and 129.4 unconstitutional since these present unjustified limitations on the right of secrecy of correspondence and other means of communications. These provisions became void from the moment the Court’s decision was published in the Official Gazette.