U.no.139/2010

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia, and Article 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 15 December 2010, the Constitutional Court of the Republic of Macedonia took the following

1. Article 4 items 47 and 48, Article 112 paragraphs 7 and 8, Article 114 paragraphs 7, 8 and 9, Article 115 and Article 138 paragraph 1 items 28 and 29 of the Law on Electronic Communications (“Official Gazette of the Republic of Macedonia”, nos.13/2005, 14/2007, 55/2007, 98/2008 and 83/2010) SHALL BE ANNULLED.

2. The resolution for suspension of the enforcement of the individual acts or actions adopted, that is, taken on the basis of the provisions of the Law noted in item 1 of this Decision SHALL BE PUT OUT OF EFFECT.

3. This decision shall be published in the “Official Gazette of the Republic of Macedonia”.

4. Upon the initiative of Stamen Filipov from Skopje; the foundation Open Society Institute Macedonia; Transparency Macedonia – Skopje; and Metamorphosis – Skopje, Foundations for Sustainable Information Solutions, with its Resolution U.no.139/2010 of 20 October 2010 the Constitutional Court of the Republic of Macedonia instigated proceedings for appraising the constitutionality of the provisions of the Law noted in item 1 of this Decision, as there was a reasonable question raised with regard to their accordance with the Constitution.

5. At its session the Court found that under the contested Article 4 item 47 of the Law, it is the Ministry of the Interior that is the authorised body for the interception of communications, which takes measures and activities for the implementation of the measure of interception of communications and has a constant and direct access to electronic communication networks and facilities of the operators of public communication networks and the providers of public communication services.

Under the contested Article 4 item 48 of the Law, the interception of communications is a technical possibility enabling secret interception of communication services, and it is effectuated by building an appropriate technical equipment and appropriate software support into the electronic communication network of the operator of public communication networks or the provider of public communication services.

The contested Article 112 paragraph 7 of the Law defines that the operators of public communication networks and providers of public communication services are required to submit, upon request, to the competent state authorities the traffic data when that is necessary in order to prevent or detect criminal offences, to conduct criminal proceedings or when the interests of security and defence of the Republic of Macedonia require that.

Paragraph 8 of the same Article of the Law stipulates that the operators of public communication networks and providers of public communication services are obliged to provide the authority authorised to intercept communications with a constant and direct access to their electronic communication networks and conditions for independent taking of traffic data.

Under the contested Article 114 paragraph 7 of the Law, operators of public communication networks and providers of public communication services are required, upon the request of the competent state authorities, to provide them with data about the current geographic, physical or logic location of the terminal equipment of their subscribers, that is, users irrespective of their telecommunication activity, when that is required to prevent or detect criminal offences, to conduct criminal proceedings or when the interests of security and defence of the Republic of Macedonia require that, in a manner defined by law.

Paragraph 8 of the same Article of the Law defines that the operators of public communication networks and providers of public communication services are obliged to enable the authority authorised for the interception of communications with a constant and direct access to their electronic communication networks, as well as conditions for independent establishment of the current geographic, physical or logic location of the terminal equipment of their subscribers, that is, users, irrespective of their telecommunication activity.

Paragraph 9 of the same Article of the Law stipulates that operators of public communication networks and providers of public communication services are obliged, upon the request of the competent authorities, for the reasons noted in paragraph (7) of this Article, to provide them with data about the terminal equipment that emerged in certain geographic, physical or logic location, in a manner defined by law.

Pursuant to Article 115 paragraph 1 of the Law, operators of public communication networks and providers of public communication services are obliged at their expense to provide the appropriate equipment and interface for the implementation of the measure of interception of communications which will take place under the conditions and in a manner defined by law.

The term equipment referred to in paragraph 1 of this Article means also the establishment of telecommunication pipelines and telecommunication equipment for transmission to the location of the authority empowered to intercept the communications (paragraph 2).

The operators of public communication networks and providers of public communication services are obliged to inform the authority empowered to intercept the communications about each upgrade of the electronic communication network or the introduction of new communication service, and to provide at their own expense equipment and interface for the interception of the communications corresponding to the upgrade, that is, the new communication service (paragraph 3).

The operators of public communication networks and providers of public communication services are obliged to request technical specification about the type and the characteristics of the equipment and interface from the authority empowered to intercept the communications for any procurement of equipment and interface referred to in paragraphs 1 and 3 of this Article (paragraph 4).

The operators of public communication networks and providers of public communication services are required to ensure constant maintenance and unobstructed performance of the function interception of communications (paragraph 5).

Under Article 138 paragraph 1 of the Law, a fine in the amount of 7% to 10% of the total annual income of the legal entity (expressed in an absolute amount) realised in the business year preceding the year when the violation is committed or of the total income realised for a shorter period of time than the year preceding the violation if the legal entity began its activity in that year, shall be pronounced against the legal entity for a violation, if:

– (item 28) it fails to enable the authority authorised to intercept the communications to have a constant and direct access to its electronic communication networks, as well as conditions for independent processing of the traffic data (Article 112 paragraph 8); and

– (item 29) it fails to enable the authority authorised to intercept the communications to have a constant and direct access to its electronic communication networks as well as conditions for independent establishment of the current geographic, physical or logic location of the terminal equipment of its subscribers, that is, users irrespective of their telecommunication activity (Article 114 paragraph 8).

6. Pursuant to Article 8 paragraph 1 lines 1 and 3of the Constitution of the Republic of Macedonia, the basic freedoms and rights of the individual and citizen recognised in international law and defined by the Constitution and the rule of law are the fundamental values of the constitutional order of the Republic of Macedonia.

Article 15 of the Constitution, which is invoked by the submitters of the initiatives, guarantees the right to appeal against individual legal acts adopted in a first instance procedure before a court, administrative body, or organisation or other institution carrying out a public mandate.

Amendment XXI which replaced Article 15 of the Constitution guarantees the right to appeal against decisions taken in a first instance procedure before a court. The right to appeal or other type of legal protection against individual legal acts adopted in a procedure before a body of state administration or organisation and other bodies carrying out public mandates is regulated by law.

Amendment XIX to the Constitution guarantees the freedom and inviolability of letters and all other forms of communication. Only on the basis of a decision of a court, under the conditions and in a procedure defined by law there may be an exemption from the right to inviolability of letters and all other forms of communication, if that is required in order to prevent or detect criminal offences, to conduct a criminal procedure or when the interests of the security and defence of the Republic require that. The law is adopted by a two-third majority vote of the total number of Representatives. This Amendment replaces Article 17 of the Constitution of the Republic of Macedonia.

Article 18 of the Constitution stipulates that the safety and secrecy of personal data is guaranteed. Citizens are guaranteed protection against a violation of their personal integrity which arises from the registration of information on them through the data processing.

Under Article 25 of the Constitution, each citizen is guaranteed the respect and protection of the privacy of his/her personal and family life and his/her dignity and repute.

Under Article 26 of the Constitution, the inviolability of the home is guaranteed (paragraph 1). The right to the inviolability of the home may be restricted only by a court decision in cases of the detection or prevention of criminal offences or the protection of people’s health (paragraph 2).

Under Amendment XXV to the Constitution, the judicial power is exercised by the courts. The courts are autonomous and independent. The courts adjudicate on the basis of the Constitution and laws and international agreements ratified in accordance with the Constitution. Extraordinary courts are prohibited. The types, competence, foundation, repeal, organisation and composition of the courts, as well as the procedure before them is regulated by law which is adopted by a two-third majority vote of the total number of Representatives.

Under Article 118 of the Constitution, the international agreements ratified in accordance with the Constitution are part of the internal legal order and may not be changed by law.

The decision on the accession of the Republic of Macedonia to international legal instruments on basic human rights and freedoms adopted by the UNO, among which are the Universal Declaration of Human Rights (adopted on 10 December 1948) and the International Pact on Civil and Political Rights (adopted on 16 December 1966), was published in the “Official Gazette of the Republic of Macedonia”, no.57/1993 of 23 September 1993.

The European Convention on the Protection of Human Rights and Freedoms of the Council of Europe was ratified by Law published in the “Official Gazette of the Republic of Macedonia” no.11/1997.

Under Article 1 of the Law on Electronic Communications, this Law governs the conditions and the manner of carrying out the activity in the field of electronic communications in the Republic of Macedonia, the establishment of the Agency for Electronic Communications, the construction, maintenance, security, supervision and use of communication networks and services, interconnection and access to electronic communications, provision of universal service, ensuring competition, use and control of radio frequency spectrum, numeration, the relations between the providers and the users of services, the management, the protection of secrecy and confidentiality of electronic communications, and other issues related to electronic communications.

Given the content of Amendment XIX to the Constitution, which guarantees the freedom and inviolability of letters and all other forms of communication, which guarantee is exercised through a law that is adopted by a two-third majority vote of the total number of Representatives, vis-à-vis the content of the provisions contested, as well as the character of the issues which by the nature of the matters are regulated in the Law on Electronic Communications (performance of the activity in the field of electronic communications, rights and obligations of the operators of the public communication networks, as well as of the providers and users of services, the management, the protection of the secrecy and confidentiality of electronic communications and other issues related with electronic communications) the Court judged that the statements in the initiatives about violations of the said Amendment are founded.

From the content of the provisions contested it arises that the same regulate an issue that refers to the interception of communications, that is, they interfere in the procedure for the interception of communications, which is the subject of regulation in other laws (the Criminal Procedure Code and the Law on Interception of Communications), adopted with a two-third majority vote of the total number of Representatives. According to the Court, the concept of the basic text of the Law which essentially contained provisions of expert-technical character, has been changed with the content of the contested provisions which by their nature are provisions regulating grounds for exceptions from the rights of inviolability of letters and all other forms of communication. This is first of all if one takes into consideration the contested provisions contain an original, direct and normative authorisation for the authority empowered to intercept the communications (the Ministry of the Interior) by ignoring or without directly calling upon the previous regulation of the procedure and the rules for the interception of communications by the Criminal Procedure Code and the Law on the Interception of Communications, under which the interception of communications of any kind may not take place without a court order.

In the opinion of the Court, this arises even from the content of the challenged Article 4 items 47 and 48 of the Law, which is included in a provision with a heading “Definitions” – type of provisions that are adopted with a view to clarifying the meaning of the expressions used in the Law (in this case: “a body authorised for the interception of communications” and “interception of communications”). However, instead of dwelling on the definition of the expressions used in the Law the legislator engages itself into a normative regulation and provides authorisation to the Ministry of the Interior to intercept the communications without referring to the way in which that should be implemented, the body that should issue the order, the length of the measure taken, the cases in which it is constitutionally-legally allowed for the public authorities to interfere into the sphere of privacy of the citizens and to make an exemption from the constitutionally guaranteed privacy.

From the further analysis of the contested provisions it arises that some of them 9Article 4 item 47, Article 112 paragraph 8 and Article 114 paragraph 8, and in connection with them also Article 138 paragraph 1 items 28 and 29) regulate the constant and direct access to the communication network and services, the independent takeover of data about the traffic, as well as independent establishment of the current geographic, physical and logic location of the terminal equipment of the subscribers, that is, users, irrespective of their telecommunication activity as measures and activities that are reserved only with regard to the body authorised to intercept the communications (MoI). On the other hand, the contested Article 112 paragraph 7 and Article 114 paragraphs 7 and 9 of the Law regulate the communication of the data about the traffic, about the position and location and about the terminal equipment upon the request of the competent state authorities (not upon the order of a court), which implies original procedure for interception different from the one in the Criminal Procedure Code and the Law on Interception of Communications which abide by the constitutional requirement for the issuance of an order by a judicial authority.

According to the Court, this concerns actions which in principle may be grouped into actions relating to the access to a network and services for the Ministry of the Interior with a possibility to learn about the content of the communication and to submit data about the communication (time of the communication, place of the communication, subscription number and similar, without content of the communication) for the competent state authorities, that is, for the needs of the investigating judge, the Public Prosecutor, the Ministry of the Interior, the Customs Administration, the Financial police, and other bodies for the purposes of detecting, prosecuting of perpetrators of criminal offences and conducting criminal proceedings against them. However, both by the effect they may have with regard to the constitutionally guaranteed privacy of the citizens, contain in themselves a danger from an unconstitutional and unauthorised intrusion into privacy, in particular in the cases when they are based on legal provisions that are not precise, subject to improvisations or interpretations, and provide direct power to the authorised bodies to implement the measure of interception of communications without placing their authorisation in a strict legal framework, such as this case. Thereby, the learning of the data about the communication same as the learning of the content of the communications, according to the case-law of the European Court for Human Rights in Strasbourg is an unauthorised intrusion into the privacy of communications always when the implementation of the measure interception of communications is not based solely on a precisely regulated legal framework and there is no difference whether the interception device records the communications or just makes and entry and controls the same, which stance was expressed by the Court, inter alia, in the case of Valenzuela Contreras v. Spain (1998).

From the special analysis of the contested Article 4 item 47, Article 112 paragraph 8 and Article 114 paragraph 8 of the Law, and in connection with the said provisions also of Article 138 paragraph 1 items 28 and 29, it arises that the same define a constant and direct access for the Ministry of the Interior to the communication network and services, that is, to the content of the communications, as a result of which a question was put before the Court if such regulation questions the constitutional guarantee of freedom and inviolability of the letters and all other forms of communication; the guaranteed security and secrecy of personal data; the constitutional guarantee of the respect for and protection of privacy, personal and family life; guarantee of the dignity and repute of each citizen, as well as the constitutional guarantee of the inviolability of the home, as a sensitive sphere of the human private and family life, his/her home and correspondence.

Item 23 of Article 4 of the Law contains clarification of the physical and logical connection which is found in the content of the contested provisions, and item 24 of Article 4 of the Law contains clarification of the notion “access”. However, from the analysis of these two provisions of the Law on Electronic Communications it arises that the same clarify the notion “access” only with regard to the connection of the operator and the user through the telecommunication equipment or the interconnection of two operators, but there is no special definition of the expression “constant and direct access” for the Ministry of the Interior in the Law. The reasoning of the Proposed Law on Changing and Supplementing the Law on Electronic Communications of April 2010 does not contain a reasoning as to what the constant and direct access to communication networks and services for the Ministry of the Interior is and how it is realised.

What is also to be noted is the fact that Article 74 of the Law on Changing and Supplementing the Law on Electronic Communications (“Official Gazette of the Republic of Macedonia”, no.83/2010) changed Article 115 of the basic text of the Law as well as the heading of this provision.

Now this article of the Law has the heading: ‘Equipment and interface for the interception of communications”.

Under paragraph 1 of Article 115 of the Law, the operators of public communication networks and the providers of public communication services are required at their own expense to provide the appropriate equipment and interface for the implementation of the measure interception of communications which will take place under the conditions and in a manner defined by law.

The term equipment referred to in paragraph 1 of this Article also implies the establishment of telecommunication pipelines and telecommunication equipment for transmission to the location of the body authorised to intercept the communications (paragraph 2).

The operators of public communication networks and the providers of public communication services are obliged to inform the authority empowered to intercept the communications about each upgrade of the electronic communication network or the introduction of new communication service, and to provide at their own expense equipment and interface for the interception of the communications corresponding to the upgrade, that is, the new communication service (paragraph 3).

The operators of public communication networks and the providers of public communication services are obliged to request technical specification about the type and the characteristics of the equipment and interface from the authority empowered to intercept the communications for any procurement of equipment and interface referred to in paragraphs 1 and 3 of this Article (paragraph 4).

The operators of public communication networks and the providers of public communication services are required to ensure constant maintenance and unobstructed performance of the function interception of communications (paragraph 5).

In Article 115 of the basic text of the Law with the heading: ‘legal interception of communications” it was envisaged that:

“The operators are obliged to provide at their own expense appropriate equipment and interface for legal interception of communications of their networks.

The operators are obliged to commence legal interception of communications in certain point of the public communication network immediately upon receiving an order by a competent court, in which it is noted the point of public communication network in which the legal interception of communications should be implemented, as well as the other data relating to the manner, scope and length of that measure.

The operators together with the competent authorities upon whose request the interception of communications takes place are obliged to provide permanent record for legal interception of the communications and to protect these data as a secret pursuant to law.

The Minister competent for electronic communications, with the consent of the Minister competent for internal affairs and the Minister competent for defence, shall prescribe the type of the equipment and the interface referred to in paragraph 1 of this Article.”

According to the Court, the previous legal solution which imposed an obligation of the operators to enable interception of the communications on the basis of an order by a competent court in which the manner, length and scope of the measure interception of communications is defined, has been abandoned in the direction of providing appropriate equipment for the implementation of the measure interception of communications which will take place under the conditions and in a manner defined by law, without invoking the appropriate application of the Criminal Procedure Code, the Law on Interception of Communications or other law regulating the field of interception of communications and implementation of the said measure. That means that the challenged law also may be a ground for interception of communications if there are provisions to that effect, even without the existence of a court order. The exclusion of the court order is the principal change in this Article.

From what was noted a question was raised before the Court whether the direct and constant access to the content of the communication occurs at the moment of the installation of the telephone line and equipment for transmission to the location of the authorised body (Article 115 paragraphs 1 and 2 of the Law) which would mean a possibility to intercept the communications from the moment the equipment is installed, for an unlimited number of subjects, without the existence of a legal ground (order by a judge or public prosecutor) and for an unlimited time period, which provides the Ministry of the Interior with an unrestricted and uncontrolled power and a possibility for constant uncontrolled gathering of information. This questions the constitutional and legal determination for the determination of the special investigative measures only on the basis of an order by a court, that is, public prosecutor in Amendment XIX to the Constitution and Articles 142-b and 142-d of the Criminal Procedure Code, as well as the legally defined time framework for the interception of communications in Article 142-e paragraph 3 of the same Code, under which provision the implementation of the special investigative measures may take 4 months at the most, and as an exception this time period may be extended for another 3 months.

Although the methods and techniques for interception are secret and are aimed at detecting the content of the communication in order to prevent or detect criminal offences, allow the conduct of criminal proceedings, or when the interests of the security and defence of the Republic require that, the Court judged that the challenged provisions of the Law do not contain sufficient guarantees against a possible misuse by the authorised authority with the given technical possibility for continued and independent interception of the content of the communication, as well as in the collection of the required data with regard to a realised communication. This is also for a reason that the provisions governing the field of interception must be sufficiently precise and predictable, must not suffer improvisations and interpretation in order not to pose a threat for the interception of anybody to whom the Law may be applied and not to interfere unconstitutionally and illegally in the respect for the citizens’ right to correspondence and freedom of communication. Or, more specifically, the legal regulation referring to the application of the measures for the interception of communications should contain a crystal clear concept about the circumstances and conditions under which the public authority is authorised to resort to the use of such measure, the manner in which the interception is carried out, the cases in which the interception of communications is justified, the body issuing the order for the interception of communications. All the rest goes in the direction of an unlimited power and is in contradiction with the principle of the rule of law.

The right to protection against misuse of the state authority in the sphere of interception is regulated in Article 6 and Article 35 of the Law on Interception of Communications, but in the contested and in the Law on Electronic Communications there are no provisions that would regulate the right to protection against misuse, and the supervision of the implementation of the measure interception of communications, and with regard to this issue there is no reference made to the provisions of the Criminal Procedure Code or the Law on Interception of Communications.

As regards the statements in the initiatives about a violation of the provisions from the international acts in which the basic freedoms and rights of the individual and citizen are recognised in international law and are defined in the Constitution pursuant to Article 8 paragraph 1 line 1 of the Constitution, as well as with regard to those international acts that are a part of the internal order of the Republic of Macedonia, pursuant to Article 118 of the Constitution, in the preliminary procedure it was established the under Article 17 of the International Pact on Civil and Political Rights nobody may be exposed to a self-willed and illegal interference in his/her private life, family, apartment or correspondence, or to illegal attacks on his/her honour or repute. Everyone is entitled to legal protection against such interference or attack.

Under Article 1 of the Universal Declaration of Human Rights, all human beings are born free and equal in their dignity and rights. Article 12 of the Declaration envisages that no one shall be exposed to a self-willed interference in his/her private life, family, home and correspondence, or to attacks on his/her honour and repute. Everyone is entitled to legal protection against such interference or attacks.

Under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Based on the content of the said provisions from the international acts, as part of the internal legal order of the Republic of Macedonia, a possibility arises to restrict the said freedoms and rights by a public authority, under conditions defined in the internal law of the state. The public authority must not interfere with the exercise of this right, unless that interference is, inter alia, stipulated by law.

Starting from Article 8 paragraph 1 line 1 of the Constitution, and taking into consideration the meaning of the European Convention for the Protection of Human Rights and Fundamental Freedoms not only as part of the internal legal order of the Republic of Macedonia but also because of the general principles on which it is based and it promotes, the Court indicates that the interpretation of the relevant constitutional provisions should be based on these general legal principles contained in the Convention and interpreted in the case-law of the Court for Human Rights in Strasbourg, which is actually a stance of the Court already expressed in the decision U.no.31/2006 of 1 November 2006 and the resolution U.no.28/2008 of 23 April 2008.

In this concrete case, with regard to the violation of privacy committed through the interception of communications, the Court in Strasbourg already has a rich case-law which is summarised in the case 25198/02, Iordachi and Others v. Moldova. In the said case, the Court in Strasbourg confirmed its stance previously expressed in the decision on the admissibility in the case Weber and Saravia v. Germany and once again summarised its case-law about the requirement for a legal predictability in this field as follows:

“ In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed”.

Hence, the contested provisions of the Law, owing to the imprecision of the expressions used, the lack of further regulation with regard to the conditions and procedure in which there may be an exception to the guaranteed constitutional right of privacy, according to the assessment of the Court pose a real threat for a self-willed and arbitrary interference of the state bodies with the private life and correspondence of the citizens which may have a negative impact on the honour and repute of the citizens without thereby having a real ground in the Constitution and laws. As a result of such situation, the contested provisions may not be interpreted as provisions guaranteeing the fundamental freedoms and rights of the individual and citizen recognised in international law and defined by the Constitution as a fundamental value of the constitutional order of the Republic of Macedonia.

7. Taking into consideration that the contested provisions govern issues related with the interception of communications, as an exception from the constitutional guarantee for inviolability of the letters and all other forms of communication, it is undoubted that the contested provisions, but not the entire law, should be the subject-matter of regulation of law that is adopted by a two-third majority vote of the total number of Representatives. Hence, the found defects in the procedure of the adoption of the contested provisions add to the found material unconstitutionality of the contested provisions.

According to the aforementioned, the Court found that the contested Article 4 items 47 and 48, Article 112 paragraphs 7 and 8, Article 114 paragraphs 7, 8 and 9, Article 115 and Article 138 paragraph 1 items 28 and 29 of the Law on Electronic Communications are not in accordance with Article 8 paragraph 1 lines 1 and 3, Amendment XIX, Article 18, Article 26 and Amendment XXV to the Constitution of the Republic of Macedonia.

8. On the basis of the aforementioned, the Court decided as in items 1 and 2 of the present Decision.

9. The Court took the present decision with a majority vote in the following composition: Mr Branko Naumoski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Dr Trendafil Ivanovski, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Igor Spirovski, Dr Gzime Starova, and Dr Zoran Sulejmanov. (U.no.139/2010)