At meeting held on June 13, 2013 Constitutional Court reached decisionwhich declared unconstitutionality of Article 128, para. 1 and Article 129 of the Law on Electronic Communications. These provisions of the Act were contrary to Article 41 of the Constitution, which guarantees the right to privacy of correspondence and other means of communication, and states that deviations from the guaranteed rights are only allowed upon a court decision, if necessary to conduct criminal proceedings or protect the security of the Republic Serbia. The Act imposed an obligation on operators to keep information on the communication of its users 12 months after the date of the communication. The operator was required to provide access to the retained data and to immediately allow the delivery of retained data at the request of the competent state authorities. Ministry in charge of telecommunications could after obtaining the opinion of the Ministry ofJustice, Ministry of Interior, Ministry of defense, Security Agency and the Commissioner for the protection of personal data, prescribe requirements relating to the retention of data.
Belgrade Centre for Human Rights, in its annual report on human rights in Serbia in 2012 expressed great concern over non-compliance of the provisions of several laws that violate the confidentiality of communications with the provisions of the Constitution. We believe that this decision of the Constitutional Court, and the decision of 2012, which declared unconstitutional controversial articles of the Law on Military Security Agency and Military Intelligence Agency, is of great importance for the protection of the right to privacy.
On this occasion, we have to point out the fact that the provisions of the Code of Criminal Procedure, which are contrary to the constitutional provisions guaranteeing the right to privacy of correspondence and other means of communication, is still in force, although it’s been long since a procedure for assessing constitutionality was initiated.
