National Security, Privacy, Data Protection and Retention
John Doe, Inc. v. Mukasey
Closed Expands Expression
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In this case, the Constitutional Court of the Republic of Serbia found that the provision of Law on Telecommunications which dealt with procedure for conducting the measures that restrict right to secrecy of correspondence and other means of communications is unconstitutional. This provision was declared unconstitutional because it did necessarily require a court decision for the application of the measures.
The provision of the article 55.1. of the Law on Telecommunication (Official Gazette RS, nos. 44/03, 36/06) was challenged in front of the Constitutional Court of Serbia, on the ground that it is in contradiction with the right to secrecy of correspondence and other means of communications (Article 41. of the Constitution of Republic of Serbia).
The disputable provision was prescribing that “all actions or use of devices that jeopardizes or impairs privacy or confidentiality of messages which are transmitted through telecommunication networks are forbidden, unless there is a consent of user or if these actions are conducted in accordance with a law or a court order issued in accordance with a law.”
Given that there is possibility to conduct these measures in other ways that can be prescribed by a certain law, besides on the grounds of a court order, the proposer considers that these provisions are in contradiction with the Constitution and therefore submitted this initiative to the Court.
The Constitutional Court in May 2009 decided that provision of article 55.1. was unconstitutional.
The Constitutional Court first emphasized that according to the Constitution of the Republic of Serbia, the right of secrecy of correspondence and other means of communication is not an absolute right and can be limited, but this limitation is allowed “exceptionally, based on the court decision on certain period of time and if that is necessary for conducting criminal procedure or protection of national security of RS, in accordance with procedure prescribed by law” (Article 41. of the Constitution).
Considering this, the Court emphasized that article 55.1. requires a court order as a basis for actions that limit this right, but it also noted that the actions can be conducted and according to a law. Given the fact that the provision separates these two situations, it is not clear in this situation where actions can be prescribed by a law or where a court order is also necessary, the Court concluded that article 55.1. is not in accordance with the right of secrecy of correspondence and other means of communication prescribed by the Constitution.
Therefore, the Court declared this provision unconstitutional and void from the moment of publishing of this decision.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision of the Constitutional Court of Serbia emphasized the long-lasting position that a high level of protection of secrecy of correspondence and other means of communications has to be established and respected. The Court highlighted that even though this right can be limited, the court decision is a necessary prerequisite for its limitation, since it provides the mechanism of effective control which should preclude possible abuses and arbitrary decisions.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The general rule is that from the date the Constitutional Court decisions are published, the unconstitutional provisions are null and void. Therefore, the decision of the Court has immediate effect.
Furthermore, this decision was particularly important since it was the first decision of this kind in Serbia. It dealt with issues of protection of privacy in telecommunication networks.
Let us know if you notice errors or if the case analysis needs revision.