Case Summary and Outcome

In this case, the Constitutional Court of the Republic of Serbia found that the provisions of Law on Military Security Agency and Military Intelligence Agency which dealt with procedure for conducting the measures that restrict the right to secrecy of correspondence and other means of communications prescribed in Article 41 of the Constitution of Republic of Serbia were unconstitutional. These provisions were declared unconstitutional because the measures they prescribed did not require a court decision for their application.

Facts

An application for challenging the provisions of the laws on Military Security Agency and Military Intelligence Agency on the ground that they were unconstitutional was submitted to the Constitutional Court of Serbia by the Ombudsman and the Commissioner for Information of Public Importance and Data Protection.  The question was whether the provisions of Article 13.1 in relation to Article 12.1.6 and Article 16.2 in contraction with Article 41 of the Constitution of Republic of Serbia prescribes secrecy of correspondence and other means of communication.

Article 12 of the Law prescribes special procedures and measures  of secret collection of data by Military Security Agency (MSA), where paragraph 1.6 defines “secret electronic surveillance of telecommunication and information systems for  the purpose of  collection of data about telecommunication traffic and location of users, without insight in to the content of communication.”

Article 13.1 prescribes that the “special procedures and measures  of secret collection of data from the Article 12. para 1.1.6. can be conducted based on the order of Director of the MSA or the person that it empower to do so.”

Article 16.2. prescribes that “MSA has the right to ask information from telecom operators about their uses, conducted communication, location form which communication take a place, and other data relevant for results of the application of special procedures and measures.” (Page 3.)

Within this application, it was requested that the Court declare these provisions unconstitutional and order MSA to cease enforcement of specific actions that were undertaken based on these provisions.

Decision Overview

The Court declared the disputable provisions unconstitutional, as requested within the application, and its decision was enforceable from the moment of publishing in the official gazette. However, the Court dismissed the claim for  ceasing enforcement of specific actions that were undertaken based on these provisions.

The Legislative Board of National Assembly, in its response to this application, submitted that Article 41 of the Constitution requires a court order for revealing communication, but the information that encompasses the measure from the Article 12.1.6 cannot be considered a “communication” as defined by the Law on Electronic Communication. The provision requires for “information about communication” – for example, did a person attempt to contact another person, when and how many times, etc. Therefore, this measure did not require revealing the content of a communication, which is protected by the Constitution, but rather required that each operator retain data. Finally, this measure was necessary for fighting current threats such as terrorism, organized crime, and corruption which constitutes a clear and imminent danger for the safety and defense of the Republic of Serbia.

In its decision, the Court referred to the provision of Article 41 of the Constitution and other provisions that relate to the limitation of human rights. Also within its reasoning, the Court emphasized Article 8 of European Convention on Human Rights (“ECHR”) and, regarding the interpretation, of this article stated that right to privacy of correspondence did not encompass only written word, but also oral communication, electronic letters/emails, and phone calls. Further, the term “means of communication” encompasses, apart from the content of the communication, the data about who and with whom the communication was made or attempted, when, for how long, how frequent, from which locations, etc. (p. 4.) Finally, following ECtHR caselaw, the Court concluded that the very interception of phone communication is per se a limitation of right to privacy of correspondence, and therefore, the law that prescribes this measure has to be clear and precise and under effective control, usually court control, and in accordance with principle of the rule of law.

Being so, the Court concluded that this measure does present an interference with the right contained in Article 41 of the Constitution. It is not disputable that this measure can be applied for the purpose of protection of safety of Republic of Serbia, as it is in the case at hand a legitimate aim. However, it is disputable that this measure provides sufficient protection form arbitrary interference by public authorities. Article 41 of the Constitution for limitation of the right of secrecy of correspondence and other means of communication among other requires written a court decision for the measures that limits this right. Since within this law the measure is applied on the order of the Director of MSA  or the person it empowers (Article 13.1),  the Court concluded that this measure presents an unjustified limitation of this right, especially given the lack of a court decision that would be an effective control mechanism. Therefore, the measure is unconstitutional.

As for the Article 16.2, the Court held the same position. Due to the fact that MSA has an autonomous right to ask the information from this article, which presents an integral element of communication, this measure is also an unjustified limitation, and is therefore unconstitutional.