The Case of Kairat Bektenov and others
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In this case the Constitutional Court of the Republic of Serbia found that the provisions of law on Information Security 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 as unconstitutional because their formulation was not sufficiently clear, precise, and foreseeable.
The provisions of the the Law on Information Security Agency (Official Gazette RS, no. 42/02, 111/09) were challenged in front of the Constitutional Court of Serbia upon the initiative of the Fund for Humanitarian Law, on the ground that these provisions contradict the right to secrecy of correspondence and other means of communications (Article 41 of the Constitution of Republic of Serbia). The disputed provisions of the law were contained in Articles 12, 13, and 14 and they related to the procedure for the implementation of certain measures that presents derogation and limitations on the right of secrecy of correspondence as well as other means of communication.
Article 13 prescribed that the “[d]irector of information security agency for the reasons of protecting security of [the] Republic of Serbia, can within its decisions [which] is based on previous court decision, decide to implement certain measures that presents derogation from the right to secrecy of correspondence and other means of communications towards certain individuals and legal entities, in accordance with the procedure prescribed by this law.”
Article 14 further stated that “the proposal of Director of Agency for the measures that presents derogation from the right to secrecy of correspondence and other means of communications, has to be approved by the president of the the Supreme Court of Cassation or the judge of that court who is entitled to act on this matter in the absence of the president of the court, within 72 hours. The proposal of Director of Agency and decisions of the court need to be in written form, and [the] proposal [has] to contain information and facts which are relevant for deciding upon the implementation of the measure, that the measure can last up to six months and that can be extended upon proposal up to six more months. In a case [that] the judge does not accept the proposal for measure, the reasons for such decision has to be elaborated within the court decision.”
Finally, Article 15 prescribes that “in the case of emergency, especially in the case of domestic and international terrorism, that in such situations Director of the Agency can order with its decision the commencement of implementation of certain measures. This decision can be issued based on previous written consent of the president of Supreme Court of Cassation, or entitled judge. The proposal for continuation of this measure has to be submitted to the judge, up to 24 hours [from] the moment of acceptance of written consent for starting the measure, where the judge has to decide whether to continue or cease measure within 72 hours.”
The Constitutional Court in December 2013 (decision published in 2014) decided that Article 12 is unconstitutional. Furthermore, the Court decided that Articles 13 and 14 were also unconstitutional because they were interlinked with Article 12.
The proposer of this initiative stated that these provisions are unconstitutional because the provisions were not sufficiently precise and clear, and because they gave the national authorities broad directional powers. The proposer, in accordance with ECtHR case law practice, stated that Article 13 is not sufficiently precise because this measure can be implemented towards unidentified persons (“certain individuals or legal entities”). Furthermore, it does not specify concrete criminal offenses for which these measures can be brought, but rather uses very broad justifications including the protection of national security. As for Article 14, it does not contain criteria on which the judge should decide the matter. Finally, Article 15 does not obligate national authorities to keep records of information collected through these measures or to protect personal information. For these reasons, the proposer argued that these provisions contradict the ECHR and therefore submitted this initiative to the Court.
The Constitutional Court first emphasized that according to the Constitution, the right of secrecy of correspondence and other means of communication is not an absolute right and “it can be limited with a law if  it is so prescribed within [the] Constitution, for the purposes prescribed by the Constitution, in the scope necessary [for] democratic society and without interference with the very essence of the right,” (Article 20 of the Constitution). Moreover, regarding this particular right, the Constitution prescribes that “limitations/derogation from this provision are allowed exceptionally based on the court decision  and if that is necessary for conducting criminal procedure or [for the] protection of national security , in accordance with procedure prescribed by law,” (Article 41 of the Constitution).
The Court stated that Article 12, 13, and 14 do present limitations on Article 41 of the Constitution, but there is a basis for such limitation to be prescribed through a law, and therefore it is up to the Court to decide whether the challenged provisions fulfilled conditions to be considered as “law”. According to the previous case law of the Court, “in order to consider one act of general nature as a law, not just in formal meaning but also in the substance, that law has to be  precise, clear, and foreseeable, so every individual can adjust its’ behavior according to the law without fear that due to imprecise and unclear provisions [it] will be deprived from exercising its rights or  that [it] will suffer certain consequences. This requirement is not fulfilled if conscientious citizens have to guess [the] meaning and the content of the provision,” (pg. 5 of the decision).
The Court, relaying on ECtHR case law, emphasized the importance of respecting the right to privacy of correspondence and that limitations of this right are allowed in certain exceptional cases. Interference with this right by the Government cannot be arbitrary, but rather is subjected to effective control and has to be in compliance with the principle of the rule of law.
Therefore in its decision, the Court concluded that Article 13 does present limitations on Article 41 of the Constitution. These limitations are argued to protect national security and thus is a legitimate limitation under the logic of the Constitution. However, even though this provision requires a court decision, the Court considered the language of the provision to not to be sufficiently precise and clear. The formulation of the provision that “certain measures” can be applied towards “certain individuals or legal entities” is too broad and therefore it is not possible to determine towards whom this provision can be applied or which kinds of measures can be applied. “The persons or measures in this provision are not precise, defined, or possible to [identify]. Because of that[,] ordinary citizens are precluded from the possibility [of] protect[ing] their rights since [it is not possible for them to identify] the rule that will be applied in the case at hand,” (pg. 6 of the decision).
As for Article 14, the Court concluded that it is not per se in contradiction with the Constitution, but because Article 14 specifies the procedure and time frame of measures from Article 13, it should be also declared as unconstitutional since it is logically and legally connected with Article 13.
Regarding Article 15, the Court had to decide whether this article is unconstitutional for the same reasons as the Article 14, or if it is unconstitutional because it presents unjustified limitations on Article 41 of the Constitution. In order to respond to this question, the Court had to decide first whether the term “court decision” referred only to the elaborated court decision in the written form, and second whether the prescribed limitation was proportional to the legitimate aim.
As for the first issue, the Court emphasized that limitation of this right has to be subjected to efficient control, which means control by the courts. Since the measures of interception and monitoring of correspondence and other means of communication provides for the possibility of different abuses and encompass a very large number of people. Thus, the Court found that these measures can only be applied based on an elaborated and written court decision.
Since this scenario is possible when there is an additional danger for national security, due to international or domestic terrorism, the Court stated that “the proportionality requirement is fulfilled between the limitation of the right in question and legitimate aim that this limitation is aimed to protect. Therefore[,] the Court concluded that this provision per se do[es] not represent [an] unjustified violation of the right of secrecy of correspondence and other means of communication, and it is in accordance with Article 20 of the Constitution,”(pg. 8. of the decision).
However, the Court finally concluded that Article 15 is also logically and legally connected with Articles 13 and 14 and therefore declared all of these articles null and void.
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 emphasizes the long lasting position that the 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 procedure for conducting limitations and conditions for implementing measures has to be sufficiently clear, precise, and foreseeable in order to enable each citizen to understand these provisions and to ensure that they provide effective control.
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 a decision is published, the decision of the Constitutional Court has immediate effect. However, in this case the effect of the decision was suspended for four moths in order for the authorities to adjust to the new situation created by this decision.
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