Communicated on 31 March 2016

SECOND SECTION

Application no. 18667/11 Vanja ĆALOVIĆ against Montenegro lodged on 14 March 2011

STATEMENT OF FACTS

The applicant, Ms Vanja Ćalović , is a Montenegrin national, who was born in 1978 and lives in Podgorica. She is an Executive Director of MANS, a prominent Montenegrin NGO. Their avowed aim is, inter alia , “to increase transparency and responsibility of institutions and improve the civil control thereof”.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is subscribed to services provided by “M-tel”, one of the telecom providers operating in Montenegro.

On 4 September 2006 the Government adopted an Action Plan for Fight against Corruption and Organised Crime. The Action Plan, inter alia , provided for “ensuring connection to databases of telecommunication services providers, for the purposes of collecting data, in accordance with police powers ( ovla šć enjima ) as provided by the Criminal Procedure Code”.

On 27 September 2007, pursuant to this Action Plan, the Police Directorate of Montenegro ( Uprava policije Crne Gore ) concluded an agreement with M-tel, which allowed the police a direct and uncontrolled access to M- tel ’ s database, thus including the data relating to the applicant.

On 2 July 2008 the applicant filed a constitutional appeal with the Constitutional Court, relying on Article 40 of the Constitution and Article 8 of the Convention and the relevant case-law of the Court. In particular, the applicant maintained that the police could obtain all the information on her telephone calls without any judicial control; that the police could directly access the computer network and database of mobile telephone operators; and that the scope of the police authority was unknown given that the Agreement was classified as “top secret” ( strogo povjerljivo ).

On 24 June 2010 the Constitutional Court rejected the applicant ’ s constitutional appeal as inadmissible given that it was not lodged against any individual decision relating to her own rights. The decision was served on the applicant on 13 September 2010.

B. Relevant domestic law

1. Constitution of the Republic of Montenegro 1992 ( Ustav Republike Crne Gore , published in the Official Gazette of the Republic of Montenegro - OG RM - no. 48/92)

Article 20 provided for, inter alia , the inviolability of one ’ s privacy and personal rights.

Article 30 provided for the inviolability of secrecy of letters and other means of communication. The principle of inviolability in this context could be departed from only on the basis of a court ’ s decision if it was necessary for the purposes of criminal proceedings or for the defence of the Federal Republic of Yugoslavia.

Article 31 guaranteed the protection of personal data and prohibited the use of these data outside the purpose for which they were collected. It also provided that everybody had the right to know which data were collected in respect of them, as well as the right to judicial protection in case of their abuse.

2. Constitution of Montenegro 2007 ( Ustav Crne Gore , published in the Official Gazette of Montenegro - OGM - no. 01/07)

Article 40 guarantees everybody the right to respect for private and family life.

Article 43 provides that everyone has the right to be informed about his personal data collected and the right to judicial protection in case of any misuse.

Article 24 § 1 provides that the guaranteed human rights and freedoms can be restricted only by means of law, to the extent allowed by the Constitution and necessary in an open and democratic society to satisfy the purpose for which the restriction was allowed.

Article 28 § 2 guarantees, inter alia , one ’ s privacy and personal rights.

The Constitution entered into force on 22 October 2007.

3. Constitutional Court Act of Montenegro ( Zakon o Ustavnom sudu Crne Gore ; published in OGM no. 64/08)

Section 48 provided that a constitutional appeal could be filed against an individual decision of a state body for violations of human rights and freedoms guaranteed by the Constitution, after all other effective domestic remedies had been exhausted.

4. Criminal Procedure Code ( Zakonik o krivi č nom postupku ; published in the OG RM nos. 71/03, 07/04 and 47/06)

Article 230 provided, inter alia , that if there was a reasonable suspicion that a criminal offence which was prosecuted ex officio had been committed the police had a duty to undertake necessary measures in order to find the perpetrator, to ensure that the perpetrator or an accomplice did not flee or hide, to uncover and secure the traces of criminal offence and objects which could serve as evidence, as well as to collect all the information which could be useful in criminal proceedings.

Paragraph 2 of the same Article provided that in order to fulfil their duties under paragraph 1 the police could, inter alia , ask a telecommunication services provider to “check if telecommunication addresses which established a connection at a certain time [are] identical” ( zatraži provjeru identičnosti telekomunikacijskih adresa koje su u određenom vremenu uspostavile vezu ) [1] . No court order is needed in this regard.

Paragraph 4 provided that a person, in respect of whom any of the measures described in paragraph 2 was undertaken, had the right to file an objection ( podnese pritu ž bu ) with the competent State prosecutor.

Articles 237 - 242 set out details in respect of secret surveillance measures. In particular, they provided that an investigating judge could order secret surveillance measures against a person in respect of whom there was a reasonable suspicion that he/she had committed a criminal offence for which they could be sentenced to ten years or more of imprisonment or a criminal offence with the elements of organised crime. These measures included, inter alia , recording of telephone conversations. They could last up to 6 months, but could be extended for another 6 months “for important reasons”. The measures were undertaken by the police, who submitted periodical reports to the State prosecutor and the investigating judge. The final report was submitted to the State prosecutor.

5. The Obligations Act 1978 ( Zakon o obligacionim odnosima ; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29⁄78, 39⁄85, 45⁄89, 57⁄89 and the Official Gazette of the Federal Republic of Yugoslavia no. 31⁄93)

Sections 154 and 155 set out different grounds for claiming compensation, including pecuniary and non-pecuniary damage.

Section 172 (1) provided that a legal entity, which included the State, was liable for any damage caused by one of “its bodies”.

Sections 199 and 200 of the Obligations Act provided, inter alia , that anyone who had suffered fear, physical pain or mental anguish as a consequence of a breach of personal rights ( prava ličnosti ) was entitled to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which might be cap able” of affording adequate non ‑ pecuniary satisfaction.

6. The Obligations Act 2008 ( Zakon o obligacionim odnosima ; published in the OGM nos. 47⁄08 and 04⁄11)

This Act entered into force on 15 August 2008 thereby repealing the Obligations Act 1978. Sections 148-149, 166 (1), and 206-207, however, correspond to sections 154-155, 172 (1), and 199-200 of the previous Act.

Section 151 (1) also provides that everyone is entitled to request the court or another competent body to order termination ( prestanak ) of an action violating, inter alia , personal integrity, personal and family life and other personal rights ( prava njegove ličnosti ).

7. Relevant case-law

For the relevant case-law indicating that a compensation claim is an effective domestic remedy in similar situations in Serbia see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others , § 45, 25 March 2014, Hajnal v. Serbia , no. 36937/06 , § 69, 19 June 2012; and Lakatoš and Others v. Serbia , no. 3363/08 , §§ 43-44, 7 January 2014.

COMPLAINT

The applicant complains under Article 8 of the Convention about the powers of the police to access directly all data of the mobile telecommunication provider to which she is subscribed, therefore including her own, in an uncontrolled manner.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the compensation claim, pursuant to the Obligations Act 1978 and the Obligations Act 2008, an effective remedy within the meaning of this provision (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others , § 45, 25 March 2014 ; Hajnal v. Serbia , no. 36937/06 , § 69, 19 June 2012; and Lakatoš and Others v. Serbia , no. 3363/08 , §§ 43-44, 7 January 2014) ? If so, the Government are invited to submit the relevant domestic case-law.

2. a ) Can the applicant claim to be a victim of a violation of the Convention, within the meaning of Article 34, occasioned by the mere existence of the agreement permitting the police to directly access all data of the mobile telecommunication provider, including those relating to the applicant? In particular, was the applicant, due to her personal situation, potentially at risk of being subjected to such measures (see, mutatis mutandis , Roman Zakharov v. Russia [GC], no. 47143/06 , § 171 in fine , 4 December 2015)?

b) In the affirmative, h as there been a violation of the applicant ’ s right to respect for her private life, contrary to Article 8 of the Convention? In particular, was the interference with her right to respect for her private life in accordance with the law and necessary in terms of Article 8 § 2 (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000 ‑ V; Malone v. the United Kingdom , 2 August 1984, §§ 67-68, Series A no. 82; and Roman Zakharov , cited above, § 179, § 232 and § 242) ?

The Government are also invited to:

- provide information as to whether there is any kind of supervision of police access to mobile telecommunication providers ’ data and to illustrate the practical effectiveness of the supervision arrangements with appropriate examples, if any (see, Klass and Others v. Germany , 6 September 1978, §§ 55 and 56 , Series A no. 28; see, also, mutatis mutandis , Ananyev and Others v. Russia , nos. 42525/07 and 60800/08 , §§ 109-110 , 10 January 2012);

- provide information as to whether the mobile telecommunication providers can record or log information on police access to their data;

- provide the Court with their Action Plan for Fight against Corruption and Organised Crime adopted on 4 September 2006 , as well as the Agreement concluded by the Police Directorate and M-tel on 27 September 2007.

[1] Direct translation of the relevant part of the statutory provision.