Source: "Blic"
With the current joint proposal for the constitutional assessment of the Law on Electronic Communications, the Commissioner for Information and the Ombudsman have posed another task before our Constitutional Court, which is already literally overwhelmed with work.
We hope that the task is not too gruesome, since what is expected is just an answer to a single question. Does the guarantee from Article 41 of the Constitution of the Republic of Serbia which states that the «confidentiality of letters and other means of communication shall be inviolable», and that derogations shall be permitted «based on decision of the court», also refers to the information on who communicated, when, how, with whom, and for how long, or could these information be accessed even without the decision of a court of law, only using a warrant or a request made by some other state institution? In essence, is the «data on communication traffic» also a part of the communication itself?
The Commissioner and the Ombudsman believe that it is, and that «easy» access and use of this data, individually and together, is a serious infringement on the above-mentioned constitutional guarantee.
The European Court for Human Rights has believed for a long time that gathering information on dialed telephone numbers, the time and the duration of the call fall under the scope of communication (Malone v. UK, judgment of 02/08/1984). The same was confirmed in more detail with the belief that the scope of privacy and correspondence encompasses not only telephone communication, but also electronic mail and the use of the Internet, while the data on telecommunication traffic (dialed numbers, time and duration of each telephone call) is «an integral part of telephone communications» (Copeland v. UK, judgment of 03/04/2007).
These judgments by the European Court for Human Rights should not only be indicative and interesting for our Constitutional Court, but much more than that. Since, in the Constitution, Article 18, Paragraph 3 it is written: «Provisions on human and minority rights shall be interpreted to the benefit of promoting values of a democratic society, pursuant to valid international standards in human and minority rights, as well as the practice of international institutions which supervise their implementation.»
