State authorities should do their job, while together we need to strengthen accountability and solidarity without violating fundamental Human Rights

The Government of Montenegro must establish overall discipline of all citizens and protect them from potential exposure to coronavirus infection by taking all available measures of intensified surveillance. This implies prosecution of persons who have anyhow breached the orders of the sanitary inspection on the imposed self-isolation measures. The publication of the list of those under the measures self-isolation is contrary to the Constitution and all international standards. Moreover, in a situation of heightened fear and panic of citizens this opens up a space for the situation to be dangerously out of control.

In order for self-isolation measures to be effective, intensified work of the police services is needed, supported by communal services and the Army of Montenegro, because it is not up to citizens, in these difficult times, to engage in ‘hunting’ those in the area of ​​criminal or misdemeanour responsibility, but to take care of their own health and health of others. We remind that Montenegro has more police officers per capita than some much more developed countries, and that we are almost the only one who has resorted to this ‘transfer of competencies’ from institutions to citizens.

Furthermore, competent judicial institutions should demonstrate readiness to act promptly, in accordance with the existing legal framework.

Of particular concern is the opinion of the Agency for Personal Data Protection on the publication of the personal name and place of residence of self-isolated persons which clearly indicates that they dealt with such a serious and sensitive issue at an equally grave and sensitive moment, extremely superficially, arbitrarily and contradictory. Namely, in its explanation, Council of the Agency for Personal Data Protection primarily refers to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which protects the right to respect for private and family life. However, instead of applying numerous international standards, which were developed by the elaboration of Article 8 of the ECHR in the case law of the European Court of Human Rights in Strasbourg, the Council based its entire explanation to a mere copy of the provision of Article 8 of the ECHR. Thus, the Council of the Agency for Personal Data Protection ‘skipped’ to implement the so-called three-part test which represent the basis of convention law. More precisely, the Council of the Agency for Personal Data Protection had to provide a comprehensive and clear explanation of whether a particular measure is in accordance with the law, whether there is a legitimate aim for its implementation, and in particular, whether this measure is necessary in a democratic society. In this regard, in order to assess if such a measure is necessary, the Council of the Agency for Personal Data Protection, inter alia, should have required the information from competent authorities on how many self-isolation spot checks have been conducted and why such a procedure proved unsuccessful, which is not visible in the explanation of the disputable opinion. Namely, such encroachment on the right to privacy of individuals who are self-isolated can only be justified if all other milder procedures have failed. Otherwise, we can conclude there was no full implementation of all the prescribed procedures for self-isolation checks, while one drastic measure was taken, with the violation of fundamental human rights and freedoms.

Furthermore, the rewriting of legal provisions throughout the entire explanation is done without subsuming the specific factual situation under substantive law. This is also noticeable in one paragraph where the Council of the Agency for Personal Data Protection rewrites the provision of Article 13 of the Personal Data Protection Law, which prescribes, inter alia, that special categories of personal data may be processed without the explicit consent of the person whose data is processed if such data are processed by a health worker or other person subject to the duties of keeping professional secret. This directly invalidates the positive opinion issued by the Agency for Personal Data Protection on the public disclosure of the personal name and residence of the self-isolated persons, because it is the completely opposite to this explanation.

The complexity of the current situation causes obvious and rather justified fear within citizens. However, such fear further leads to raising tension and fury, which we have witnessed in previous days. This in particular obliged the competent authorities to address the identified problem through enhanced efforts and to exercise all legal authorities, and not to give up and shift their responsibility to the citizens.

We need to fight coronaviruses with solidarity and unity, and this has shown positive effects so far. Due to the small number of irresponsible individuals, we should not have gone into the zone of systematic violation of rights and arousal of bad feelings, and we sincerely hope that no bad actions will be caused by citizens. Therefore, we again urge the Government that the competent authorities should exercise their powers, for which they will have our full support, as well as to work on strengthening solidarity and responsibility of all in order to win this battle together.

Tamara Milas, Human Rights Programme Coordinator at the CCE