Podgorica, 18 January 2010 – MANS representatives Vanja Ćalović, Dejan Milovac and Veselin Bajčeta are going to file a private complaint against the Police Directorate and mobile-phone operator M-Tel in order to secure the annulment of an agreement by which the Police Directorate was granted direct access to M-Tel data.
The Police Directorate and M-Tel concluded an Agreement on Mutual Cooperation on 27 September 2007, which granted the police arbitrary and limitless access to data and information on telecommunication, including immediate, unrestricted, 24/7 access to such data held by M-Tel.
The agreement was concluded in contravention of Montenegro’s Constitution, the European Convention on Human Rights and Freedoms, the Criminal Code of Montenegro and the Law on Obligatory Relations, and is contrary to the opinions and rulings of the European Court of Human Rights.
Montenegro’s Constitution stipulates that everyone has the right to respect for their private lives and that the secrecy of telephone conversations and other forms of communication is inviolable. Derogations from this principle can only be made by court order in cases relating to criminal proceedings or matters of security. Everyone is granted the right to be informed about the information that was gathered on their person and the right to judicial protection in cases of abuse. Restrictions on these rights can only be imposed in accordance with the law and in the parameters set down by the Constitution.
The European Convention on Human Rights and Fundamental Freedoms stipulates an obligation for public authorities, including the Police Directorate, not to interfere in private lives and correspondences, except where such interference is foreseen by the law and if considered necessary in a democratic society for the maintenance of security, public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others.
Contrary to the Constitution and the European Convention, the Police/M-tel agreement gave the police the ability to independently, arbitrarily and indefinitely violate people’s right to privacy and to violate the secrecy of telephone conversations and correspondences (although such interventions may only be prescribed through legal channels and by court decision).
Pursuant precedents set by the European Court of Human Rights, all forms of private communications are included in the concept of the right to privacy. Therefore giving a list of calls to the police, without legal approval or the consent of the persons concerned constitutes unjustified interference with the right to privacy.
The European Court also holds that the principles relating to the interception of telephone conversations also applies to the interception of messages transmitted by other means. In this sense, the ability of the Police Directorate to have 24-hour access to all data held by M-Tel, including the content of SMS messages, is undoubtedly a violation of the Convention.
M-Tel service users aren’t granted the “effective control” to which they are entitled to under the rule of law and that would limit the interference of authorities that is deemed “necessary in a democratic society.”
The European Court considered the issue of dialed number registries (listings), which are an integral part of telephone communications, and concluded that handing this information to the police without the prior consent of subscribers constituted interference with the rights guaranteed under Article 8 of the Convention.
Article 230 of the Criminal Code, which is cited as the basis for concluding the Agreement between the Police Directorate and M-Tel, does not provide any basis upon which the police could claim access to such data on the basis of agreements with private service providers. This suggests that by concluding the agreement the police violated its statutory authority (and thus acted unlawfully in concluding this Agreement). Namely, the Police Directorate knowingly concluded an illegal agreement with M-Tel, trying to conceal this from the public by classifying the document as “top secret.”
Along these lines, the European Court for Human Rights noted that in cases where the powers of the executive branch are exercised in secret the risks of arbitrary use of power are heightened.
It is for these reasons that we are requesting that the Basic Court in Podgorica determine the validity of the Police/M-Tel agreement that violates the rights of the company’s customers.
