(Podgorica, July 28. 2013.) – The police will not be able to uncontrolably and unrestrictadly access telecomunication operator M-Tel’s data , as Natasa Boskovic, a judge of the Basic court in Podgorica, on the complaint filed by Vanja Calovic, Dejan Milovac and Veselin Bajceta, found that thus violated rights of privacy and confidentiality of telefone conversations and correspondence of network’s users.
Representatives MANS initiated proceedings in which they asked the court to determine the nullity of an agreement on mutual cooperation of the Police Directorate, as the first defendant and the second defendant company M-Tel.
Almost six years M-tel the allowed police to have 24-hour access to contact information, calls, e-mails, text messages, and data on the geographical location of its customers, based on an agreement concluded on September 27, 2007.
“In the oppinion of the Court the agreement provides a high degree of arbitrariness in the conduct done by the first defendant,” according to the ruling, which is “in direct conflict with the provisions of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the cited provisions of the Constitution as the supreme legal act, and in direct opposition to the standards and principles of the European Court of Human Rights and the decisions of this court that are binding”, the judge Natasa Boskovic concluded in the judgment.
“Contrary to the cited provisions of the Constitution of Montenegro and the European Convention for the Protection of Human Rights and Fundamental Freedoms, the defendant prescribed under this agreement and gave to the first defendant a clear ability to independently and indefinitely violates the right to privacy and to violate the secrecy of telephone conversations and correspondence, although that can be prescribed only by the law or a court decision”, it says in the ruling.
“In the context of the cited decisions of the European Court of Human Rights, the court finds that the the ability of the first defendent to have 24-hour access to information in the possession of the second defendant, which relate to the content of SMS messages is undoubtedly a violation of Article 8 of the Convention,” the judgment confirmed.
Judge Boskovic in the judgment states that “the proper procedure in obtaining the data do not provide sufficient protection against arbitrary treatment and possible abuse.”
“Police were able to access and retrieve data based on its own estimate that were in the possession of the second defendant and that has a direct, permanent and unrestricted 24-hour access and the ability to download data from the second defendant and immediate and unlimited downloads data,” says the judgment.
The judgment determines that the police of M-tel “may undertake all types of telecommunications contacts, calls, e-mails, messages, and the scope of this information is beyond the power that the first defendant could have.”
“The court is particularly suggestive of the fact that the signed agreement does not identify the category of persons to whom it may apply these measures, nor it gives reasons for them, but the first defendant can applied it to each service user of the second defendant as cell phone operator, and also the scope and manner of the measures was not prescribed, but the measures can be applied indefinitely, given the unrestricte and uncontrolled 24-hour access to the necessary information by the first defendant”, according to the ruling.
“It is particularly worrying that “the agreement excludes any interference and control of the first defendant with the rights of individuals, because by providing to the first defendant 24-hour access to the necessary information … from the start deprived and disabled any kind of control. “
Judge Boskovic in the judgment states that “prosecutors and other service users of the second defendant do not have available “effective control” which based on the rule of law citizens have a right to it, and which the same may limit the interference given to what is necessary in a democratic society and control of the prosecutors specifically and all the other users in this case is completely excluded by agreement of defendants.
Defendants required confidentiality of agreements that beyond the unlimited 24-hour access to the necessary information by the first defendant shows indisputable that the beneficiaries of the second defendant are not able to determine whether against them are applied, or were applied any measures, so it is obvious this as well a violation of Article 8 of the European Convention” according to the ruling.
“Just the indication that the agreement is strictly confidential in the court opinion is also illegal and arbitrary and contrary to the valid and binding law of the European Court of Human Rights” called the judge Boskovic.
MANS doubts that the verdict shows that the police persist in the brutal violation of the Constitution and the law, the right to privacy and confidentiality of correspondence and telephone communications of tens of thousands of citizens. Politicized and corrupted police officials for six years had the opportunity to abuse the data from interviews, messages and e-mails of citizens and we suspect that they are doing it, because it certainly they were not celebrated in other fields. This practice has to become part of the police practice from the past, not the present state that is a candidate for EU membership, and for the massive violations of citizens’ rights someone must have some responsibility and that citizens must be able to access the data, and they need to have an effective judicial protection of rights.
