These solutions are threat for the human rights and according to the assessment of the European Court of Human Rights, carry the risk that a secret surveillance system may undermine and even destroy the democracy in a state.
Therefore, the Helsinki Committee calls on the proposer of the amendments (the Ministry of Transport and Communications) to remove the disputed articles and to withdraw the draft amendments to the Law on Electronic Communications from parliamentary procedure.
-Privacy under scrutiny
The draft amendments and supplements to the Law on Electronic Communications are currently in parliamentary procedure. Those proposing the amendments go one step further in derogating the existing legal and constitutional norms by providing unlimited power to the competent body for interception of communications (MoI) on how the monitored data will be used, circumventing any external control.
The operators of public communication networks and providers of public communication services are obliged to provide permanent and direct access to their electronic communication networks and conditions for autonomous taking over of traffic data to the competent body for interception of communications – this is the Ministry of Interior. This decision is also extended with the location of the terminal equipment of the subscribers. These decisions however, avoid the court, public prosecutor’s office, even the operators, because MoI is allowed to take over independently the traffic data, so no one else needs to know that MoI is taking over the data, while the external control is not even mentioned, which absolutely collides with the existing legislation.
These proposals are directly against the Constitution of the Republic of Macedonia, which specifically defines the manners of limitation to the right of privacy and present severe violation of the fundamental freedoms and rights of the citizen. The proposed amendments will prevent any judicial control over the legality of applied measures and will deprive the individual from the possibility of protection in case of possible abuse, while providing for voluntary and irresponsible use of private data of citizens by the competent body for interception of communications.
Accordingly, after learning about the proposed amendments from the media, the Directorate for Protection of Personal Data, which was not consulted in the process, voiced its opinion, noting that “these legal solutions introduce highly invasive methods for data processing, which are unfair, inappropriate and too extensive in relation to the purposes for which they are gathered and processed in terms of the provisions of Article 5 of the Law on Protection of Personal Data”.
-The Law is against EU standards
Another, problematic issue in the proposed changes is the duration of 24 months for keeping the unprocessed traffic data, which is against the European practice for storing data in duration of 6 (six) months, as well as the amendments that technically allow the body for interception of communications to have direct, permanent and autonomous access to the traffic data, by installing an appropriate equipment.
The proposed amendments and solutions to the Law on Electronic Communications are against the international documents and norms on the right to privacy and particularly the European Convention of Human Rights (hereinafter: the Convention), which was enforced in the Republic of Macedonia in 1997, and pursuant to Article 118 of the Constitution of the Republic of Macedonia, making the Convention an integral part of the internal law of our state.
The right to privacy is also regulated in the Universal Declaration of Human Rights, as well as in the International Covenant on Civil and Political Rights, stipulating that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
The Committee of Ministers of the Council of Europe has also regulated this issue in the Recommendation No. R (85) 10 stressing the necessity to protect the individual against unjustified interceptions. The recommendation points out that the specific nature of letters rogatory for the interception of telecommunication requires detailed regulation, particularly with regard to the manner of their execution, the transmission of the records resulting from the interception and the use of those records in the requesting state.
The proposed amendments and supplements are yet to be further developed and harmonized with the Directives of the European Commission in this sphere (Directive 2009/136/ЕC and Directive 2002/58/ЕC). According to them, the state should undertake measures ensuring access to personal data only to an authorized body for the legally defined purposes as well as to undertake measures in order to protect the stored or transmitted data from illegal processing, unauthorized storing, destruction or other illegal proceeding.
Unfortunately, those that have proposed the amendments to the Law on Electronic Communications did not take into account the national or international legal standards and postulates on developing the proposed solutions when they decided to allow permanent and free access of the body for interception of communications to the most subtle data from the private sphere of the citizens, without providing any external and independent control.
All this represent a threat to human rights in the Republic of Macedonia, and vast number of Macedonian NGOs, including Helsinki Committee for Human Rights, call the Ministry of Transport and Communications of the Republic of Macedonia, to remove the disputed articles and withdraw the draft amendments to the Law on Electronic Communications from parliamentary procedure. However, the state authorities still remain at its standpoint that the Law is quite clear and up to EU standards.
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